Summary
In Sumrall v. State, 209 Miss. 761, 46 So.2d 549, 48 So.2d 502, Sumrall had heard that his lease, as he supposed his title to be, would expire in 1948, and he made application for a twenty-five year lease.
Summary of this case from Burkley v. Jefferson CountyOpinion
No. 37515.
May 22, 1950. Suggestion of Error Sustained in Part, November 6, 1950 (48 So.2d 502).
1. Board of supervisors — sixteenth section lands — order to lease, rescinded — collateral attack.
Where the title to a described portion of a sixteenth section had not passed out of the state and the board of supervisors made an order leasing it to a named party, which not being consummated, the board later rescinded the order and leased to another party from which rescinding order there was no appeal, the first named party could base no claim on the original order since this would amount to a collateral attack on the rescinding order.
On Suggestion of Error.2. Adverse possession — sixteenth section lands — fee simple title.
To establish title in fee simple to sixteenth section lands under the twenty-five years adverse possession statute the possession must have been maintained under a claim to a fee simple title absolute, and such a title can not be acquired by an occupant claiming under a sixteenth section lease. Sec. 6596 Code 1942.
3. Adverse possession — sixteenth section lands — forfeited tax patent.
When sixteenth section lands had been forfeited to the state by a tax sale on March 4, 1878, followed by a forfeited tax land patent issued on May 8, 1883, to the predecessor in title of the present occupant, the forfeited tax land patent carried only such title as the state obtained by the tax sale of 1878, and when it is not shown whether that title was a leasehold or was in fee simple either of which it could then have been, and when it is shown and admitted that the present occupant and all his predecessors in title claimed as leaseholders and not as holders in fee simple the twenty-five year adverse possession statute would permit establishment of a leasehold title only and not one in fee simple.
Headnotes as approved by Lee and Hall, JJ.
APPEAL from the chancery court of Walthall County; R.W. CUTRER, Chancellor.
John E. Stone, Assistant Attorney General, for the State.
I. The State was without authority to sell sixteenth section school lands in fee simple at the time of the issuance of the deed under which appellant claims.
Appellant bases his title upon the deed of S. Gwin, Auditor of Public Accounts, to D.M. Walker, dated May 8, 1883, purportedly conveying to the grantee the E 1/2 of Section 16, Township 1, Range 10 East, Pike County, Mississippi. The tax sale under which the State got its title, was held on March 4, 1878.
In the case of Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, this Court held that Secs. 2015-2019, inclusive, Code 1871, granted authority to the school directors to sell sixteenth section school lands in fee, Secs. 2015-2019 Code 1871 being a part of Article 7, Chap. 39 of the Code of 1871.
Chap. XIV, Laws 1878, Sec. 64 thereof, specifically repealed all of the then existing school laws, making specific reference to Article 7, Chap. 39, Code 1871, as well as to other sections, said Sec. 64 of Chap. XIV, Laws 1878, reading as follows: "Sec. 64. Be It Further Enacted, That the articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, of chapter 39 of the Revised Code of 1871, and all of chapter 1, of the Acts of 1873, and all of chapter 4 of the Acts of 1874, and all of chapters 67 and 162, of the Acts of 1875, and all of chapter 113, of the Acts of 1876, be, and the same are hereby, repealed."
In providing for the sale of sixteenth section school lands in the Code of 1871, it was provided that these lands should only be sold after an election held for the purpose of ascertaining the will of the electors. Even in the event the electors voted in favor of selling these lands, the lands could not be sold until after the giving of public notice for at least six weeks prior to the sale, and, even then, the sale could not be made for less than the minimum sum fixed by the board of appraisers. We are unable to find that anywhere at any time authority has ever been vested in any state official to make sales of sixteenth section school lands in fee simple. In the present case the purported sale in fee was made on the 8th day of May, A.D., 1883, long after all authority for the sale of sixteenth section school lands had been repealed.
In the case of Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435, 34 So.2d 735, this Court stated that the Auditor was authorized and empowered to execute the patents conveying sixteenth section school lands in fee under the express provisions of Sec. 566, Code 1880. We respectfully submit that this section of the Code of 1880 merely provides that all lands heretofore sold to the State for taxes and now held by the State, may be redeemed or purchased in the manner provided for the redemption or purchase of lands sold for taxes in the future, which section provided for the issuance of deeds by the Auditor. In other words, it was the intention of the legislature to make the statute appearing in the Code of 1880 retroactive as well as prospective, without any thought being given concerning the sale of sixteenth section lands. We respectfully submit that this could not give authority to the Auditor to sell in fee sixteenth section school lands, which right had been expressly taken from the board of school directors (the only persons who ever had such right) by Chap. XIV, Laws 1878. It would appear from what has heretofore been said that probably the Legislature left in doubt the procedure to be followed regarding the disposition of sixteenth section school lands theretofore struck off to the State for taxes, but such is not the case. Sec. 51, Chap. XIV of the Laws of 1878, provided that these lands may be conveyed pursuant to the revenue laws, said Sec. 51, Chap. XIV, Laws 1878, reading as follows: "Sec. 51. Be It Further Enacted. That all lands now or hereafter held by the State by purchase for taxes due thereon, shall be sold and conveyed pursuant to the revenue laws, and the proceeds thereof paid in the State treasury and placed to the credit of the common school fund."
What did the revenue laws referred to by Sec. 51 of Chapter XIV, Laws 1878, provide? Provisions were made therein regarding sixteenth section school lands in Article 5, Chapter 22, Code 1871, being Sec. 1679, reading as follows: "Section 1679. All school lands known as the sixteenth sections, reserved for the use of schools, or lands reserved or granted in lieu of, or a substitute for said sixteenth sections, shall be liable, after the same shall have been leased, to be taxed as other lands are taxed during the continuance of such lease; but in case of sale thereof for taxes, only the title of the lessee or his assignee shall pass by such sale."
This section not only appeared in the Code of 1871 but also as Sec. 21, Chap. III, Laws 1878, said chapter being entitled "An Act in relation to Public Revenue" and became effective on the same date as the repeal of the Code sections giving the school directors the right to sell sixteenth section school lands in fee. We respectfully ask what could be more persuasive of the intention of the Legislature to provide that only the unexpired portion of leasehold of sixteenth section school lands and not fee simple title was to be sold than a reading of the statutes?
It will thus be seen that the Legislature set forth a comprehensive plan regarding sixteenth section school lands in that by repealing in 1878 the right of sale of sixteenth section lands in fee, it expressly took the right from the board of school directors, the only persons who ever had such right, and they only had the right by virtue of an election, and a sale was then made at a fixed sum not less than the appraiser's value thereof. The Legislature then provided in the same chapter that these lands were to be sold in compliance with the revenue laws, and Sec. 1879 being a part of Article 5, Chap. 22 Code 1871 under the general heading of "Public Revenue", provided that sixteenth section lands shall be liable to be taxed after they have been leased, but that in case of a sale thereof for taxes only the title of the lessee or his assignee shall pass by such a sale. We must therefore urge upon this Court that there was never any intention on the part of the Legislature and that they did not so provide that any state official might sell sixteenth section school lands in fee at any time and especially when no election had been held therefor by the electors of the township, when no appraisal had been made on a basis. The Legislature even took the right of sale in fee away from the school directors, local officials, even when they had been surrounded with the above safeguards. All that possibly could have been conveyed by the deed of S. Gwin to the grantee, D.M. Walker, on the 8th day of May, 1883, was the unexpired portion of a lease estate. Our contention that the deed of S. Gwin of May 8, 1883, did not convey a fee simple estate, but only the unexpired portion of a leasehold estate is further borne out by the instrument itself where it states: "The State of Mississippi hereby warrants the title to said lands according to the Statute in such cases made and provided and not otherwise.
What statute could the deed be referring to except Sec. 1679, Code 1871, for all right of conveyance in fee of sixteenth section school lands had been taken away by legislative enactment in 1878. If it was a conveyance in fee, why limit the warranty? We respectfully submit that the warranty applied only to the lease estate in view of its own statement taken in the light of the statutory pronouncements herein referred to.
II. Appellant obtained only a leasehold interest by possession.
In its opinion this Court, among other things, referred to Sec. 6596, Code 1942 (the twenty-five year adverse possession statute) as coming to appellant's aid in his claim to the fee simple title to the lands involved in this suit.
Sec. 6596, Code 1942, reads as follows: "Adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima facie evidence in such case that the law authorizing the disposition of the lands has been complied with and the lease or sale duly made. If the claim be under a lease, the time at which the lease expires shall be fixed by the court."
In construing this statute, this Court early held that it displaced all other presumptions of sale or lease of sixteenth section school lands. "The only presumption that there had once been a `lease or a sale' of such school lands, now recognized by the law, is one arising under said section from `adverse possession' for a period of twenty-five years, under a claim of right or title." Leflore County v. Bush, 76 Miss. 551, 555, 25 So. 351.
In view of the above pronouncement of this Court the case of Caruth v. Gillespie, 109 Miss. 679, 68 So. 927, and other cases following the doctrine of "presumption of lost grant" can have no effect in this case and we respectfully urge that anything stated in the decision in the case of Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435, 34 So.2d 735, to the contrary was erroneously decided. The twenty-five year adverse possession statute, furnishing a statutory presumption in this special instance causes all other presumptions to fade away.
We respectfully urge upon this Court that the contentions made and adopted by the Court in the opinion on suggestion of error in the case of Jones v. Gulf Refining Company, supra, regarding the effect of an Auditor's deed were urged upon and adopted by this Court in regard to a tax sale of school lands to an individual, in the case of Chamberlain v. Lawrence County, 71 Miss. 949, 15 So. 40, wherein this Court said: "The tax collector's conveyance to individuals, and list of lands sold to the State, are declared to be prima facie evidence that the assessment and sale, and all proceedings of sale, were valid. Code 1871, Sec. 1700; Code 1892, Sec. 1806. Since no valid sale of the land could have been made unless it had been previously leased by the authority of law, the tax deed and list of land sold to the State must be held to establish prima facie the fact that such lease had been made; otherwise, no effect would be given to the statute." But all of this was specifically overruled upon enactment of the twenty-five year adverse possession statute, the Court stating in Leflore County v. Bush, 76 Miss. 551, 555, 25 So. 351: "The case of Chamberlain v. Lawrence County, 71 Miss. 949, has no application to suits brought under chapter 123 of the Code of 1892, relative to the sixteenth sections, insofar as a tax collector's conveyance furnishing a presumption that a sixteenth section had been leased, and had become, therefore, subject — as to the term — to taxation, is concerned. Section 4148 of said Code furnishes a new rule of evidence where sixteenth sections are concerned."
As far as we are able to discern no distinction is to be drawn because in one case the sale was to an individual bidder at a tax sale and in the present case the lands were struck off to the State and subsequently conveyed by Auditor's deed. The original opinion in the case of Jones v. Gulf Refining Co., supra, followed the decision in the case of Leflore County v. Bush, supra, but the opinion on suggestion of error seems to have departed therefrom. It will be noted by the Court that in the original opinion in the case of Jones v. Gulf Refining Co., supra, the Court stated: "According to the allegations of the bill, the grantee under said patent went at once in the exclusive possession and actual occupancy of the land and he and his successors in title, appellant being the ultimate of such successors, have been in the continuous, actual occupancy of said land, claiming the fee simple title thereto for a period of more than sixty years."
Also in the case of Foster v. Jefferson County, 202 Miss. 637, it will be seen that the claim of the complainant was to a fee simple rather than a leasehold title.
Therefore, it seems that in the original opinion in the case of Jones v. Gulf Refining Co., supra, the only presumption that arose or can arise in regard to holding of sixteenth section school lands is from the twenty-five year adverse possession statute, and we would especially invite the Court's attention to the fact that the allegations (the case coming up on demurrer) of the bill in the case of Jones v. Gulf Refining Co., supra, that the complainant and his predecessors in title had been claiming the fee simple title for more than sixty years. In the present case we have no allegations contained in a bill to guide us, but the testimony of the complainant himself that neither he nor his predecessors in title had ever claimed more than a leasehold interest in this land until the year 1947. Prior to the year 1947 complainant not only recognized the State's superior title to the land, but made application to the board of supervisors for a lease thereto. We most respectfully ask how a man who by his own admission never claimed more than a leasehold interest could be held to be claiming a fee simple title, since he was entitled under the law to no presumption by virtue of the Auditor's deed, which Auditor's deed, as we have shown in Point I of this brief, could not possibly have conveyed a fee simple title in this land.
If this Court is going to follow its pronouncement in the case of Leflore County v. Bush, supra, then all that is left to complainant is his claim under the twenty-five year adverse possession statute, and then the case of Jones v. Gulf Refining Co., supra, is no authority for him for, in that case, the complainant got that which he claimed by adverse possession, not something greater. If, as according to complainant's testimony he did, complainant and his predecessors in title claimed only the leasehold interest, when and how was the State put on notice that he was claiming fee simple title by adverse possession when he was applying to the board of supervisors for a lease on this very land? Notice that the one in possession of land is claiming the ownership thereof is essential before such possession can become adverse and set the statute to running. 2 C.J.S., Sec. 81, p. 628; Williams v. Patterson, 198 Miss. 120, 130, 21 So.2d 477.
Breed O. Mounger, for Walthall County.
(a) Sumrall, the appellant, purchased by quit-claim in the year 1947 and held as a leaseholder;
(b) Lamar Felder and Alton W. Stogner, immediate predecessors in title of Sumrall purchased in 1947 and held as leaseholders;
(c) Mrs. Gladys Stogner and Mrs. Helen Felder, predecessors in title to Felder and Stogner, purchased in 1944 and held as leaseholders;
(d) George W. Sumrall, Sr., predecessor in title to Mrs. Gladys Stogner and Helen Felder, purchased in 1929 and held as a leaseholder.
Thus begins and ends any positive testimony as to the history of the possession or occupancy of the lands in question. Under the statute and all known rules of pleading it was upon the appellant, complainant below, to establish his hostile possession of the lands in question. He developed the history of said lands for a period of approximately 21 years and from the origin of this history to the hour of trial all predecessors in title claimed as leaseholders and according to the record it had "never entered their minds" to claim anything else.
We respectfully urge the Court that a review of the record fails to disclose any proof whatever of hostile occupancy by the appellant or any of his predecessors in title and on the contrary the entire history of the possession of the lands attempted to be proven by the appellant establishes that all held under an unexpired lease.
There is no evidence whatever contained in the record establishing that D.M. Walker, patentee, or any of the predecessors in title of the appellant ever held title claiming the fee. There were allegations in the bill of complaint to that effect but no proof whatever was offered. These allegations of the bill were denied by the answer of the appellee.
W.H. Watkins, Jr., Roland D. Marble, and Price, Phillips Alford, for Sumrall.
Appellee states that appellant has disclaimed the fee simple title and has acquiesced in some sort of administrative control down to the date of the trial. This record does not reflect that appellant has disclaimed the title to this land. It does reflect a gross and abiding ignorance of his rights with reference to his title to this land, and with reference to his having the only perfect record title thereto, and the first error in the Court's opinion urged by appellee is its contention that Sumrall failed to testify that he and his predecessors in title had claimed the title to this land adversely over the sixty-five year period of ownership, occupancy, use and control by them.
In this connection appellee now attempts to assert that Sumrall and his predecessors in title are shown to have been only leaseholders. There is absolutely no evidence in this record whatsoever that there was ever any lease of this land by the school authorities to any person whatsoever, or under any circumstances whatsoever. And much is made throughout this and other suggestions that the appellant presumed, although ignorantly, that he held the unexpired portion of a lease to the land because it was sixteenth section lands and because it was commonly understood that all sixteenth section lands were and are school lands to which no title could be secured by a private citizen. Does this divest him of the only perfect record title of the land involved? Certainly not. This Court has held time and time again that a citizen can not be estopped, or his property taken from him simply because of ignorance of his rights. Under the common law which applies in Mississippi to abandonment of title, one cannot abandon a fee simple title. It can only be lost by an estoppel, by adverse possession, by a valid tax sale, or by a conveyance out of him. Meyerkort, et al. v. Warrington, 19 So.2d 433; 1 Am. Jur. p. 5, par. 6; Barrett v. Kansas, etc., Coal Company, 70 Kansas 649, 79 P. 150; Kreamer v. Venedia, 213 Pa. 74, 62 A. 518, affirmed 24 Pac. Sup. 427.
In the case at bar the deraignment of title goes all the way back to the United States government, the sovereignty itself, and shows a perfect record title, and this is contrary to the assertions of the appellee in this suggestion that there was no history of the title to these lands prior to December 17, 1929. Is not a deraignment of title a complete history of the title? The amended deraignment goes back to the sovereignty itself and comes step by step down to, and into, this appellant. The only ways that this appellant and his predecessors in title could have been divested of their perfect record title to the land are those outlined above in the Meyerkort case, supra. Appellee did not show that this appellant or any of his predecessors in title at any time divested themselves of title by any of these means. In truth and in fact the appellee simply claims it ought to have the title to this land because the appellant had abandoned the title under his ignorance of his rights, and by failing to claim title hostilely because of such ignorance.
Appellee argues at length with regard to Sec. 6596 of the Code of 1942 and with regard to adverse possession "under claim of right or title", and in this connection again brings in the question with reference to the appellant ignorantly presuming a school lease covering the land in question. It forgets the language in the statute of "claim of right". Moreover, as we have pointed out time and time again a presumption of title is absolutely unnecessary in a case where a citizen has the one and only perfect record legal title to the property in question and he and his predecessors in title have over a period of 65 years been in the actual and exclusive use and occupancy of the property, and the undisturbed, peaceable, notorious, and open possession thereof. In this connection appellee makes some reference to broken chain of title and again we point out that appellee does not show to this Court a single break, we repeat a single break in the chain of title in this record in this appellant.
Appellee often refers to leases and leaseholders. Again we say that this Court will search this record in vain for any proof of any lease of this land as school land or otherwise to or by any person or other legal entity. Appellee argues about administrative control. Administrative control could only be had by positive administrative acts. There could be no administrative control in any other way. This Court will search this record in vain for one single administrative act by or on behalf of the appellee or any of its officials except shortly before this suit appellee leased this land for oil and gas purposes and this lease was soon thereafter dropped and was not in effect when this case was filed.
Appellee attempts to challenge the decision of this Court with reference to the warranty of the State in its deed from S. Gwin, Auditor, to D.M. Walker, in 1883.
We point out that all the deeds made from the State, contrary to forfeited tax land patents, contain such a provision.
The warranty of the State in this deed is according to the statute in such cases made and provided and not otherwise. Is this a limitation on the warranty? The truth is that appellee could not point out a statute that would limit this warranty, other than those vesting in the Auditor the power and authority to sell the land. This power and authority is apparently admitted, and has been so, throughout this entire litigation.
What effect would a limitation on such a warranty have on appellant's title? We contend it would have no effect for the reason that his record title shows that the State did acquire a fee simple title to the land in question. Since it did acquire such a title it certainly conveyed such a title. Therefore, how could the absence or the existence of a warranty affect the appellant's title as a remote successor in title to the State?
Appellee complains that this Court followed the case of Jones v. Gulf Refining Co., etc., 202 Miss. 705, 32 So.2d 735, and attempts to challenge the opinion on this ground.
In reading the opinion it is perfectly apparent that this Court followed the Jones case, supra, as authority for the fact that S. Gwin as Auditor of Public Accounts on May 8, 1883, had the power and authority to convey to D.M. Walker a fee simple title to the land in question and that under that decision construing Section 566 Code 1880 this conveyance was absolutely sufficient to divest the State of its title to the land in question.
In further answer to this suggestion, if, as held by the Court in this case, the Jones v. Gulf Refining Co. case and Foster v. Jefferson County, 206 Miss. 629, 32 So.2d 568, a conveyance by the State under Sec. 566 of Code 1880, operated to completely divest the State of its title to lands located in a sixteenth section, how can it now be held that such a conveyance in the case at bar did not do so without overruling all of this line of decisions? In all of those decisions this Court had reiterated time and time again that under Sec. 566 Code 1880 there was ample, sufficient and complete authority to execute a conveyance to lands in a sixteenth section where owned by the State either by tax sale or otherwise. That if the land was under lease the leasehold was merged with the title of the State to the sixteenth section land under the compact with the State of Georgia; that the execution of a conveyance under the express provisions of Sec. 566 Code 1880 by the Auditor completely and absolutely operated to divest the State of all of its right, title and interest in and to the land covered by such a conveyance.
ON SUGGESTION OF ERROR.
After a full and careful consideration of the suggestion of error we have reached the conclusion that the same is well taken and that the former decision herein, 46 So.2d 549, is erroneous insofar as it reverses the decree of the lower court and awards unto appellant the title to the 287 1/2 acres of land situated in Walthall County, Mississippi, and described as NE 1/4 and N 1/2 of SE 1/4 and SW 1/4 of SE 1/4 less 2 1/2 acres in SE corner, and all of SE 1/4 of SE 1/4 lying north of the public road in Section 16, Township 1 N., Range 10 E.
(Hn 2) Section 6596, Code of 1942, provides: "Adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima facie evidence in such case that the law authorizing the disposition of the lands has been complied with and the lease or sale duly made. If the claim be under a lease, the time at which the lease expires shall be fixed by the court." It will be noted that under this statute there must be not only adverse possession for a period of twenty-five years but also this possession must be under a claim of right or title. The statute first appeared as Section 4148, Code of 1892, under the chapter pertaining to sixteenth section lands. It appears in the 1942 Code under the chapter on schools and under the subdivision thereof dealing with sixteenth and lieu lands. It is well known that most of the claims to sixteenth section lands are under ninety-nine year leases, many of which were never recorded and have been lost, misplaced or destroyed, and that only a comparatively few of such claims are based upon grants of the whole title in fee. This statute was plainly designed to protect the claimants to the unexpired portion of ninety-nine year leases as well as claimants to the absolute fee simple title, but in either event the possession of the claimant must be adverse and must be under a claim of right or title. Obviously one who holds twenty-five years adverse possession and claims the same under an unexpired lease cannot under the statute establish a fee simple title to the land, for, if he could, the state would eventually lose its title to all the sixteenth section lands in the state. Where sixteenth section lands are under lease there is a reversionary interest in favor of the state or county, and referring thereto in connection with the twenty-five year statute, this court said in Weiler Haas v. Monroe County, 76 Miss. 492, 25 So. 352, 353: "The statute of limitations, whatever its effect in favor of appellants as to the lease, did not run against the reversion." To establish absolute title to such lands the possession must be under a claim to the absolute fee simple title. This was clearly recognized in Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, 568, and in Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435 and 34 So.2d 735, upon which two decisions the original opinion in this case rests.
(Hn 3) This brings us to the question whether under the facts presented by the record now under review the appellant herein claimed the above described land in fee simple or only under an unexpired lease. It throws some light on the question to first consider the conveyance from the State of Mississippi to D.M. Walker, dated May 8, 1883, in the light of the statutes then existing. It is a tax forfeited land patent and recites that the lands in question were therefore sold to the State for taxes on March 4, 1878, and that D.M. Walker "desires to purchase said tract of land under the provisions of the laws of Mississippi in such cases made and provided." It continues that for a consideration of $23.37 paid, the State "by these presents does bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, the aforesaid tract of land as above described to have and to hold the same to said party of the second part, his heirs and assigns forever. The State of Mississippi hereby warrants the title to said lands according to the statute in such cases made and provided and not otherwise." The conveyance is signed by S. Gwin, Auditor of Public Accounts. At the time of the execution of this patent, the only authority of the Auditor of Public Accounts to sell tax forfeited lands was vested by Section 561, Code of 1880, which provides that upon application, etc., "he shall execute to the person redeeming or purchasing such land a conveyance of the title of the state thereto . . . and when duly executed, as herein provided, shall pass all claim or title of the state to such land as it conveys." There was no authority in the Auditor to warrant title to any land conveyed nor to convey any title further than what was actually owned by the State, and this patent expressly conveyed and warranted "the title to said lands according to the statute in such cases made and provided and not otherwise."
The statute for assessment and sale of sixteenth section lands existing at the time of the purported tax sale on March 4, 1878, appears as Section 1679, Code of 1871, and provides: "All school lands known as the sixteenth sections, reserved for the use of schools, or lands reserved or granted in lieu thereof, or a substitute for said sixteenth sections, shall be liable, after the same shall have been leased, to be taxed as other lands are taxed during the continuance of such lease; but in case of sale thereof for taxes, only the title of the lessee or his assignee shall pass by such sale." The four sections of the 1871 Code immediately preceding the quoted section make provision for the making up of an assessment roll in a manner substantially the same as that presently in use. The quoted section appears in exactly the same verbiage as Section 494, Code of 1880. Under this statutory scheme then in effect it was the duty of the county tax assessor, if these lands were under lease on January 1, 1877, to place them on the assessment roll for taxation exactly the same as all other lands in the county, and if the taxes were not paid in due course it was the duty of the tax collector to sell the same on March 4, 1878, for the unpaid 1877 taxes, just as all other lands were sold for taxes, and if there were no bidder it was his duty to strike off the same to the State and to so certify on his list of sale, but as to the sale the above quoted statute specifically enjoined that "in case of sale thereof for taxes, only the title of the lessee or his assignee shall pass by such sale." The statute does not say that in executing a tax deed or certifying a list of lands sold to the State the tax collector shall show that only a leasehold interest is conveyed, but it simply says that in case of a sale for taxes only the title of the lessee or his assignee shall pass by such sale. Consequently under the tax patent involved in this case the State did not attempt to convey and could not convey any title further than such title as had become vested in the State by virtue of the tax sale of March 4, 1878. What that title was we do not know for the appellant failed to offer any proof on the point. It could have been a fee simple title, and just as easily it could have been the title to an unexpired leasehold interest.
The appellant relies upon possession by himself and his predecessors under the aforesaid twenty-five year statute of limitations. As heretofore pointed out, that possession must have been under a claim of the absolute title to the lands before he could have the fee simple title established in him by court decree. This land was acquired by appellant's father in 1929, later by his sisters, later by their husbands, and finally by appellant himself. Appellant testified positively and without hesitation that none of these parties had ever claimed the fee simple title to the land, that all of them claimed under an unexpired ninety-nine year lease, that he took title under a claim of such a lease and continued to claim it under such a lease until the year 1947 when he applied to the board of supervisors for a renewal thereof, and then had an investigation made to ascertain when his lease would expire. This investigation disclosed the aforesaid forfeited tax land patent and thereupon in 1947 he for the first time made a claim to the fee simple title. Up until then all of them had dealt with it as if they owned only an unexpired leasehold interest in it. None of them would cut or undertake to sell any timber from the land, and some of them applied to the board of supervisors to purchase the timber. There was never any claim of the entire title until 1947 and all their dealings with the land were such as to lead the officials to believe that no interest was claimed therein except an unexpired leasehold. Under this testimony and these admissions the appellant wholly failed to make such a showing as to justify establishing his fee simple title to these lands. We have therefore concluded that the former opinion herein is in error in adjudicating appellant to own such a title and in that respect the same is withdrawn and the decree of the chancellor is affirmed in its entirety.
The State has filed a brief wherein we are asked to overrule the decision in Jones v. Gulf Refining Co., supra, but in view of our conclusions we do not reach a consideration of that point.
Suggestion of error sustained, former opinion withdrawn, and cause affirmed.
Kyle, J., took no part in this decision.
ON SUGGESTION OF ERROR.
With deference, I dissent against the conclusion reached by the Court in this case.
The Constitution of 1869 contained no prohibition against the sale of sixteenth section land. The Legislature, by the enactment of Sections 2015 to 2019, inclusive, Code 1871, expressly authorized the sale of the fee to such lands. A condition precedent was an affirmative vote of the qualified electors of the township. The several necessary steps were specified. The school directors were authorized and required to execute all conveyances.
In Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, 568, this Court recognized the validity of the sections, supra. The sale, in that case, was not in conformity with the statute in at least two respects: (a) the deed was executed by the superintendent instead of the school directors, and (b) no appraisement appeared on the minutes of the board of supervisors. However, the treasurer's books showed that the consideration had been paid. Under these circumstances, this Court invoked the presumption of regularity, and held that the State had parted with its fee to the land. It fortified its conclusion to invoke such presumption by observing that the grantees therein, and their successors in title, had actually claimed the fee thereafter for more than twenty-five years after the enactment of the statute of limitations by the Code of 1892, now Section 6596, Code of 1942.
This Court, in Jones v. Gulf Refining Company, 202 Miss. 705, 32 So.2d 435, 436, 34 So.2d 735, again invoked the same presumption of regularity. Although the record failed to show that the State had parted with its fee to the land there in question, this Court presumed that it had done so prior to the year 1874, for the taxes of which year, the land had been sold in 1875. And this Court held that, by reason of its purchase at the tax sale in 1875, the State had acquired the fee, and it, therefore, had the power to, and did, by its patent, convey the fee. Hear the solemn construction of that instrument by this Court as follows: "On July 4, 1881, S. Gwin, the Auditor of Public Accounts, executed and delivered to A.B. Jones a forfeited tax land patent to the lands here in question, the grant being of the described land as a `tract of land', there being no words of limitation of the estate granted to the effect that it was an unexpired lease, but the grant was to the grantee and `his heirs and assigns forever'. It recited that the land `was sold on the 10th day of May 1875 for the taxes due the State.' The Auditor was authorized and empowered to execute the patent under the express provisions of Section 566, Code 1880." (Emphasis supplied.)
This Court solemnly declared that the State, in that case, by its patent, conveyed a title in fee simple forever and not a lease; "Thus the presumption arises that before January 1, 1874 the sovereign had parted with the fee-simple title, as under the Code of 1871 it could have done, and the presumption is further that it was a fee simple title, not a lease, inasmuch as the patent aforesaid conveyed a title in fee simple forever and not a lease." (Emphasis supplied.)
Hear again the solemn statement of this Court that the instrument in that case was a warranty deed, after it had further and maturely considered the same on Suggestion of Error: "As stated in our former opinion, the fact that the conveyance by the State in 1881 was a full warranty deed sufficiently evidences the extent of title which the State had theretofore acquired." (Emphasis supplied.)
In the case under consideration, we have an instrument exactly like the one in Jones v. Gulf Refining Company, supra, except the name of the patentee, the amount of the consideration, the date, and the description of the land. In that case, the land was sold in 1875 for the taxes of 1874. In this case, the land was sold in 1878 for the taxes of 1877. In that case, the patent was issued in 1881. In this case, the patent was issued in 1883. In that case, S. Gwin, Auditor, executed and delivered the patent. In this case, the same S. Gwin, Auditor, executed and delivered the patent. The substantial provisions are set out in the majority opinion. The basis for the conveyance and all of the covenants are identical. If the conveyance in that case carried the fee, it must do so in this case. The majority opinion does not overrule that case, but holds that the instrument in this case — identical in terms and covenants — is not sufficient to convey the fee. I am unable to comprehend the reasoning which, in one breath, declares fish to be fish, and, in the next breath, adjudicates fish to be fowl.
The majority opinion tries to write around this glaring impasse by the necessity for adverse possession. It is true that in Jones v. Gulf Refining Company, supra, the original bill of complaint alleged that the patentee and his successors in title had claimed the title throughout the years. The demurrer, of course, admitted all allegations. But I do not take it that the Court, by the mention of this fact, was undertaking to make it the basis of the decision. If the State conveyed the fee title, it did not have anything left. Among individuals, a grantee in a warranty deed and his successors in title need not thereafter and forever claim and assert their title, lest the original grantor may decide to repudiate his deed and take their property away from them. How far would such a grantor get in either a court of law or of equity? I concede that an occasional avaricious individual might be found who might try such course, if he thought he could succeed. But the sovereign State, as such, is free from greed and avarice. It is a composite of the conscience of two million souls. How the sovereign State can take from one of its citizens land which it had theretofore conveyed in fee simple to a predecessor in title is absolutely beyond my comprehension. I protest against it as vehemently as I know how.
I submit this further proposition on the question of adverse possession: Section 211, Constitution of 1890, enjoined upon the Legislature the duty to enact laws to ascertain the true condition of Sixteenth Section lands. This section was evidently adopted by the Constitutional Convention because it was known that, during the period of 1871 to 1878, the State had lawfully parted with its title to some of these lands. The Legislature, in compliance with that mandate, passed legislation to effect that purpose. Chapter 129, Code of 1906. The duty was imposed upon boards of supervisors to prosecute suits to establish and confirm these titles. Yet, for a period of more than forty years, the board of supervisors of Walthall County did nothing to oust Sumrall and his predecessors in title. They asserted claim to the fee only after appellee instituted his suit to confirm the title.
The solicitude of the majority opinion that holders of the unexpired lease might, by adverse possession, undertake to claim the fee, in my opinion, is wholly unfounded. Manifestly, an adverse claimant can obtain such estate only as the adversary possessed. It was during the period from 1871 to 1878 only that these lands could be sold. Consequently, danger on that score is negligible indeed.
I think the majority opinion misconceives the force and effect of the provision in the instrument that "The State of Mississippi hereby warrants the title to said lands according to the statute in such cases made and provided and not otherwise." The State, from a valid tax sale of the property of an individual, acquires the fee. Where the State has parted title with sixteenth section land, and subsequently such land, as the property of an individual, is validly sold to the State for nonpayment of taxes, the State acquires a fee thereto just as it would any other land. To me, such provision effects no limitation. Its significance is obvious: If the State actually had only part title, then the patent conveyed only what the State had; if the sale under which title was obtained was, in fact, void, the State did not assume to make the title good. But, if the State's title was in fee, then the patent passed the fee. Such a construction is in line with Section 561, Code 1880, which provides that upon application, etc., the Auditor "shall execute to the person redeeming or purchasing such land a conveyance of the title of the state thereto . . . and when duly executed, as herein provided, shall pass all claim or title of the state to such land as it conveys." (Emphasis supplied.)
I cannot see how the failure of Sumrall to claim the fee title, or his presumption that he was operating under a lease, could have the effect of divesting him of the fee title which, I think, the State had conveyed to the original patentee, and which he received by mesne conveyances. Neither do I think that the lack of claim and his presumption operate to reinvest or confer title in the State.