Opinion
No. 38655.
February 23, 1953.
1. Sixteenth sections — tax titles — unexpired 99-year lease.
Where sixteenth section lands are under 99-year unexpired leases, and no showing is made that fee simple titles thereto were granted during the only period when such titles to sixteenth section lands could be conveyed, tax sales and private grants made during the existence of the leases, unexpired, had no effect except for and during the unexpired periods.
2. Sixteenth sections — unexpired 99-year leases — adverse possession.
While and during the period when sixteenth section lands are held under unexpired 99-year leases, the twenty-five years adverse possession is not applicable presumptively or otherwise so as to confer any rights upon the occupants beyond and until the termination of the leases. Sec. 6596, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Neshoba County; J.K. GILLIS, Chancellor.
W.T. Weir, for appellants.
Appellants claim their titles to the lands by adverse possession by rules of evidence as laid down by Sec. 6596, Code 1942, and reads as follows, to-wit: "Rules of Evidence — Adverse Possession. — 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."
And the evidence which was undisputed shows that they and their predecessors occupied the lands for more than fifty years prior to the proceedings herein.
We submit that the case of Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, 568, is applicable to this case, which holds as follows: "1. Construction and application. The benefits of this statute cannot be denied to one who has been in undisputed continuous and actual occupancy of lands for the prescribed period under recorded deeds in fee simple purporting to have been executed by lawful authority because a record cannot be found verifying that all statutory steps were taken."
Deeds to defendants' predecessors in title of school lands under a former statute authorizing sale of school lands, Secs. 2015-2019, Code 1871, evidenced a claim of right in their behalf, was color of title in fee simple, and their possession under that claim and color for more than twenty-five years after 1892, in the absence of an affirmative showing that no valid sale was in fact made, renders the title acquired by such adverse possession under claim of title such that it cannot be successfully assailed.
Sanford Alford, for appellees.
The appellants did not offer any testimony or evidence wherein the title was acquired during the time a sale was not prohibited by the Constitution, but all of the evidence discloses that said lands were leased prior to the time that an outright sale could have been made.
The case of Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 568, does not have any application to the case at bar, in that in the Foster v. Jefferson County case the deed was executed at a time when the Constitution of the State of Mississippi did not prohibit the sale by the State of this sixteenth section land.
The case at bar is controlled by the case of Pilgrim v. Neshoba County, (Miss.), 40 So.2d 598, and W.J. Johnson, et al. v. Neshoba County, (Miss.), 41 So.2d 36.
The statute of limitations of twenty-five years has no application to this case, as the appellee recognizes the leases to be valid; therefore there is no presumption. The appellee does not question the legality of the leases and no proof was offered as to how the leases were executed due to the fact that the chancellor found, from the evidence, that said sixteenth section land, described as Township 11 North, Range 12 East, was approved and validated by the Legislature of Mississippi, in 1840, as shown by the Acts of the Legislature, Sec. 59, Chap. 9, p. 142.
Appellants, W.D. Creekmore, A.L. Sisson and others brought this suit in the Chancery Court of Neshoba County against the county and its board of supervisors, appellees here, seeking to cancel clouds asserted by defendants against the appellants, who claimed title to parts of Sec. 16, T. 11 North, R. 12 East, Neshoba County, which is a school-land section. (Hn 1) Appellants' bill of complaint alleged title in them by 1874 tax collectors' deeds and by warranty deeds from their predecessors, and by adverse possession of the land for more than twenty-five years. Creekmore and Sisson are the only appellants involved on this appeal.
The county answered and charged that the section was held in trust by the state for the township schools; that the lands had been leased under 99-year leases which would shortly expire; and that any claims which complainants might have would be only as to those leases. The county denied that appellants had obtained any title by adverse possession. Various instruments in the chain of titles were introduced in evidence, and several witnesses testified on behalf of the complainants and defendants. The final decree of November 27, 1951, correctly dismissed with prejudice the actions brought by Creekmore and Sisson. It held that the complainants had failed to meet the burden of proof necessary to establish any legal title.
Code of 1942, Section 6596, 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."
Appellants do not show any conveyance by the school directors of a fee simple title to these lands into their chain of title from 1870 to 1878, which was the only period during which there was any power to make an outright conveyance of such school lands. Lambert v. State, 211 Miss. 129, 51 So.2d 20 (1951).
The record reflects that there were 99-year leases executed by the county on the N 1/2, the SW 1/4, and the SW 1/4 of the SE 1/4 of this section, all expiring in the late 1940s and early 1950s. (Hn 2) Hence as to the claims of appellants to any of these lands, they were precluded from obtaining any rights to the reversion if at all, until after the termination of the leases. The execution of these leases removed any presumption which might arise under Code Section 6596, and negatived any claim of right or title which might have otherwise existed presumptively under that statute. Reese v. Mayo, 213 Miss. 123, 56 So.2d 77 (1952); see also Sumrall v. State, 209 Miss. 761, 777, 46 So.2d 549 (1950); Pilgrim v. Neshoba County, 206 Miss. 703, 40 So.2d 598 (1949).
As to the claims of appellants in the E 1/2 of the SE 1/4 and the NW 1/4 of SE 1/4 of this section, the chancery court was amply justified in its finding that appellants had failed to meet the burden of proof necessary to establish their averments. Appellants relied upon 1874 deeds from a tax collector to W.P. Sanders, upon subsequent, apparently unlimited conveyances from other persons to appellants' predecessors in title, and upon the case of Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435, 34 So.2d 735 (1948). These deeds are not in the record. We do not know their provisions. The record only shows a skeletonized abstract of them, grantor and grantee, date, and book and page of recording. The Jones case is of dubious value as a precedent in the light of all of the other decisions of this Court interpreting Section 6596, but even under the rules stated in it the chancellor was warranted in finding that appellants had wholly failed to meet their necessary burden of proof. The costs will be divided on a basis of one-third to Jim Kilgore and wife, and one-third each to Creekmore and Sisson.
Affirmed.
Roberds, P.J., and Kyle, Holmes and Lotterhos, JJ., concur.