Summary
In Easterling v. Howie, 179 Miss. 680, 176 So. 585 (1937), this Court reversed and remanded, saying: "The bill of complaint (Howie's) fails to alleged [sic] that before the patent was issued * * * the notice * * * was given to the original buyer, W.W. Moore, or his vendee, [Mrs. Easterling] by registered mail, or otherwise, for a period of 30 days, or that he, or his vendee, was thus given an opportunity to purchase the land under the statutes above referred to. * * *"
Summary of this case from State v. StockettOpinion
No. 32853.
October 25, 1937. Suggestion of Error Overruled November 8, 1937.
1. STATUTES.
In interpreting a statute, intent and purpose of Legislature must be determined.
2. PUBLIC LANDS.
Statute relating to sale of blocks and lots of land, title of which is vested in state, situated in municipalities of the state in and outside city of Jackson was intended to confer on purchasers of land ceded to state as seat of government lands same privileges as those conferred on holders of invalid titles from Land Commissioner (Code 1930, section 6036, as amended by Laws 1936, chapter 174, section 19; Laws 1926, chapter 185, section 1, amending Code 1906, section 2919).
3. PUBLIC LANDS.
Under statutes relating to lands to be managed and disposed of through State Land Office and authorizing Land Commissioner to issue patents to lands sold in the city of Jackson, and providing for notice by registered mail to be given to prior purchaser, notice must be given to original purchaser or his vendee before the lands are available for sale, and there can be no valid sale without such notice (Code 1930, section 6036, as amended by Laws 1936, chapter 174, section 19; Laws 1936, chapter 185, section 1, amending Code of 1906, section 2919).
4. PUBLIC LANDS.
Where complaint in suit to confirm title to land under patent from state issued to plaintiff in 1936 alleged that prior patent was issued to another in 1926, and failed to allege that original buyer was given notice of the sale or that original buyer did not obtain lands in good faith or that price was unfair and unreasonable, complaint was demurrable (Laws 1936, chapter 174, sections 19, 26; Code 1930, section 14; Code 1930, section 6036, as amended by Laws 1936, chapter 174, section 19).
5. PUBLIC LANDS.
Complaint in suit to confirm title to land under patent from state issued to plaintiff which did not allege that plaintiff was in possession of the land, or that there was no adverse occupancy, was demurrable, since such allegation is necessary in suit to confirm title other than tax title (Code 1930, section 403; Griffith's Chancery Practice, section 217, p. 215).
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
W.E. Morse and L.F. Easterling, both of Jackson, for appellants.
After a decision of this court in the case of Huber v. Freret, 138 Miss. 238, 103 So. 3, the Legislature, to meet that decision, passed Chapter 185 of the Laws of 1926. The purpose of this act was to clarify the law as to what lands the Land Commissioner could sell and to provide that lands situated in municipalities and divided into lots might be sold by the Land Commissioner at prices to be fixed therefor.
The purpose of this act is clearly set forth in the title: "An Act to amend Section 2919, Code of 1906, being section 5254, Hemingway's Code of 1917, so as to authorize the State Land Commissioner, under certain conditions to sell lands owned by the State of Mississippi situated within municipalities, which are described by lots, blocks, plots, subdivision or otherwise; prescribing a method of price fixing therefor."
It will be observed that the Legislature, in Section 81 of Chapter 185 of the Laws of 1926, in amending Section 2919 of the Code of 1906, clarifies the law as then existing by clearly conferring upon the Land Commissioner the power to sell lands ceded to the State of Mississippi for a seat of government, which have been surveyed into blocks and lots in the City of Jackson.
The purpose of this act was to give the patentee or his vendee a prior right to purchase land, the title to which had failed because of the lack of power in the Land Commissioner to execute the conveyance.
Hart v. Backstrom, 148 Miss. 13, 113 So. 899.
It is our contention that inasmuch as the bill of complaint shows that the Land Commissioner had theretofore in 1914 attempted to patent the said land to W.W. Moore, who in turn sold to the appellees, even though the pleader may denominate the patent issued as a void patent, still the presumption prevails and is indulged in against the pleader that the Land Commissioner, in selling the said land to the said Moore, complied with the law, and that Moore complied with the law. The law presumes right action, rather than wrong or incorrect action.
It is, therefore, obvious that the appellee, standing upon Chapter 185 of the Laws of 1926 as amended in Chapter 174 of the Laws of 1936, must bring his case within the statute. He, having shown that a prior patent had attempted to be issued to the land, must go further and show those conditions precedent to the right of the Land Commissioner to sell the land to anybody else other than the former patentee, or his vendees, that is the appellee must show in his bill either that notice was given by registered mail to the original patentee, or that, if his post office address was unknown to the Land Commissioner, publication required by law in lieu thereof had been given.
Gulf Development Co. v. Linder, 170 So. 646, 176 Miss. Barber v. Levy, 73 Miss. 484, 18 So. 797; Kline v. State, 44 Miss. 317, 18 Am. Eng. Enc. L. 571; Bloodgood v. Railroad Co., 18 Wend. 9.
It is an elemental rule of pleading that, where the power to issue the particular patent, under which the appellee claims title to the land itself contains a condition prerequisite to sell the particular kind of land, that the pleader must show these prerequisite conditions have been complied with. Otherwise, it fails to show a valid patent and a valid title.
Mansfield v. Olsen, 4 So. 545.
If the pleader had not charged in his bill that this same land had been sold under an invalid patent to W.W. Moore, possibly it would not have been necessary to make the averment in his bill of complaint that the notice to the former patentee had been given as required by the statute. But where the bill shows the issuance of a prior invalid patent to W.W. Moore, and that the title to the said land under said patent had passed by mesne conveyances to one of the appellants, it then became obligatory upon the pleader to show that the conditions prerequisite to the issuance of the patent had been complied with.
Howie, Howie McGowan, of Jackson, for appellee.
The appellant says that the provisions of Section 6036, Code of 1930, which provide that former patentees of town and city lots holding under void patents shall be given notice before the property is resold, apply to the seat of government lands situated in the limits of the City of Jackson involved in this suit. Appellee says that this is not true.
Chapter 185 of the Laws of 1926, hereinafter referred to for brevity as the Act of 1926, does three distinct things. First, it made saleable for the first time in fifty-one years a little block of ground situated in the cypress swamp southeast of the Old Capitol, and being a part of the seat of government lands. Second, it made saleable for the first time town and city lots. This was the real reason for the passage of the act. Third, it provided that former purchasers of town and city lots and their vendees who had bought under void patents should have the first right to repurchase the land and should receive notice to that effect.
At the very time Moore induced the Land Commissioner to grant this patent to him, these lands were subject to a ninety-nine year lease provision. The lands were not even saleable. In fact they were sold in plain violation of the law. The act of 1875 governing these lands was at that time in full force and effect and had never been repealed.
Moore and his assignees and vendees have no right or standing whatsoever in a court of equity or before this court. Whether by collusion or not, Moore violated the law. The only presumption that can be indulged is that he wilfully and knowingly did the same in the face of the statute. It might be said that Moore's patent, though in the form of a deed, was really a ninety-nine year lease. However, the instrument did not so purport to be, but if it did purport to be a leasehold then certainly the provisions of Section 6036 and of Section 2 of the Act of 1926 would have no application whatsoever to leased lands.
So we respectfully submit that the vendees of W.W. Moore cannot be heard to claim the benefits of this act. It was never intended to apply to them. The Legislature in curing the defect in the land system disclosed by the Huber case, 138 Miss. 238, merely inserted a clause making these lands saleable for the first time in fifty-one years.
As we view it there is no reasonable or justifiable ground for saying that the Legislature ever intended to extend this benefit of notice over to Moore or his vendees, who had unlawfully attempted to buy these lands in the very face of a plain law to the contrary. This appellant vainly touches at a bare technical thread and that is, that this property had been subdivided into "lots and blocks," and that it was within the corporate limits of a municipality. Then he solemnly says that the sections must be construed together and the notice must go to Moore or his vendees. It is not sensible that the Legislature ever intended any such things. In fact, the act itself does not say so.
It is respectfully submitted that the benefits of this act are intended for people who had purchased these urban lands and continued to hold them, paying taxes upon them. It is most improbable that the benefits of the act would accrue to persons who had thrown the lands back upon the State by allowing them to sell for taxes.
The appellee, J.H. Howie, filed his bill of complaint in the chancery court of the First district of Hinds county against the appellants, Mrs. N.B. Easterling, L.F. Easterling, O.D. Offutt, C.F. Slyhart, and the city of Jackson, together with other named defendants, and all persons having or claiming any interest in certain blocks and lots of land situated in East Jackson, subdivision of the city of Jackson, to which he seeks the confirmation of title, and which are alleged to have been granted and ceded unto the state of Mississippi by an act of Congress of the United States on February 20, 1819 (3 Stat. 485), for the use by the state as seat of government lands, the title to which is claimed by the appellee under a patent from the state issued to him on November 14, 1936. But it is alleged in the bill of complaint that a prior patent for the same blocks and lots of land was issued on November 20, 1915, in favor of one W.W. Moore, from whom the defendants named in the bill, as known to be claiming an interest in the land, are alleged to claim their title through mesne conveyance, and under certain tax sales.
It is further alleged that certain of these lands which were ceded to the state of Mississippi by the act of Congress on February 20, 1819, as seat of government lands, were authorized to be sold under an act of the Legislature of the state of Mississippi dated February 16, 1838; that there is some evidence of the same having been sold by virtue of the provisions of the said act, but that there is no record of any patent having been issued or recorded therefor; that if any of the lands were sold the title thereto was reacquired by the state under a tax sale of May 10, 1860, for the taxes due thereon for the year 1859; that under and by virtue of chapter 62 of the Laws of 1875, provision was made for the lease of said lands for a term of 99 years, and it is alleged that this act, by implication, repealed the former act of 1838 authorizing the sale of such lands; that no power to sell these lands existed in the Land Commissioner from 1875 until the enactment of chapter 185 of the Laws of 1926, which was subsequent to the issuance of the patent to W.W. Moore, and prior to the issuance of the patent in favor of the appellee.
The bill of complaint fails to alleged that before the patent was issued to the appellee on November 14, 1936, the notice provided for in section 2 of chapter 185 of the Laws of 1926, section 6036 of the Code of 1930, or chapter 174 of the Laws of 1936 (section 19), was given to the original buyer, W.W. Moore, or his vendee, by registered mail, or otherwise, for a period of 30 days, or that he, or his vendee, was thus given an opportunity to purchase the land under the statutes above referred to at such reasonable price as the State Land Commissioner, the Governor, and the Attorney General might fix, and obtain a credit on such price for the amount theretofore paid for the lands in question, with 6 per cent. interest, compounded annually, on the same, not to exceed the then value as fixed by said officers. In this connection the bill merely alleges that the patent issued to the appellee on November 14, 1936, was issued in accordance with section 26 of chapter 174 of the Laws of 1936, but which we find has no reference to the giving of such notice. On the contrary, section 19 of chapter 174 of the Laws of 1936 is the section thereof which provides for the notice to the original buyer or his vendee. Hence, the bill fails to allege specifically, or in general terms, that the notice provided for in any of these statutes was given.
A demurrer was interposed by the appellants chiefly on the ground that the bill of complaint set forth the issuance of the prior patent to W.W. Moore, and fails to allege that the Land Commissioner, in making the sale to the appellee, complied with chapter 185 of the Laws of 1926, section 6036, Code of 1930, or chapter 174 of the Laws of 1936 (section 19). The demurrer was overruled by the court, and an appeal from that decree was granted, as provided for in section 14 of the Code of 1930, and as recited in the decree, to settle all of the controlling principles of law involved in the case, and to avoid unnecessary expense and delay.
The appellee contends in his brief, however, that section 2 of chapter 185 of the Laws of 1926, brought forward as section 6036 of the Code of 1930, and amended by chapter 174 of the Laws of 1936 (section 19), has no application as to the requirement of notice to the original buyer, or his vendee, of seat of government lands, but that this provision of these statutes applies to other lands situated in municipalities and divided in blocks and lots, which had theretofore been sold by invalid patents, and not to seat of government lands in the city of Jackson. And resting their argument on this ground, counsel for the appellee refrain from discussing the sufficiency of the allegations of the bill of complaint as to the notice given to the holder of the prior patent, or his vendee. And the question presented to us as the controlling principle of law involved in the case is whether or not section 2 of chapter 185 of the Laws of 1926, section 6036 of the Code of 1930, or chapter 174 of the Laws of 1936 (section 19), apply as to the giving of notice to a former purchaser under an invalid patent, when the state undertakes to sell seat of government lands.
It was held in the case of Huber v. Freret, 138 Miss. 238, 103 So. 3, decided on January 26, 1925, that section 2919 of the Code of 1906, prescribing the lands to be managed and disposed of through the State Land Office, gave no authority to the Land Commissioner to issue a patent to urban public lands belonging to the state, surveyed and divided into blocks and lots, but only authorized the sale of lands usually bought and sold by acreage.
Thereupon, the Legislature, at its next session, enacted chapter 185 of the Laws of 1926 (section 1), amending section 2919 of the Code of 1906, so as to specifically provide for the sale, through the State Land Office, of "all lands belonging to the state of Mississippi which were ceded to the state of Mississippi by the United States government for a seat of government which are located in Pearl river swamp and subject to overflow and all other seat of government lands which have been surveyed into blocks and lots in the city of Jackson, Mississippi, which were a part of the original lands ceded by the federal government to the state of Mississippi for a seat of government and which have never been disposed of by the state of Mississippi," etc. And this act further provided that: "Land situated within municipalities which has once been patented by either the United States government or the state of Mississippi, and the title to which has thereafter, by escheat, tax sale, or otherwise become vested in the state of Mississippi, shall be sold by the land commissioner, by and with the written approval of the governor, as herein provided, even though it may have been subdivided into lots, blocks, divisions or otherwise and escheated to the state by such description," etc. These added provisions are contained in section 1 of said chapter 185 of the Laws of 1926, amendatory of section 2919 of the Code of 1906. Then there is added to the former statute section 2 of the act of 1926, which reads as follows: "All sales of such lands situated within municipalities, which lands have heretofore escheated to or title thereto become vested in the state, and which have been sold by the land commissioner of the state at a fair and reasonable price not less than that prescribed for the swamp and overflowed lands, may be conveyed to the original holder of the patents, or if he has sold same to his vendee at such reasonable price as the state land commissioner, the governor, and the attorney general shall fix, and such purchaser shall be allowed as credit on such price the amount heretofore paid therefor, with six per cent (6%) interest, compounded annually, on the same, not to exceed the present value as fixed by such officers. And no land heretofore sold, or attempted to be sold, shall be sold until notice by registered mail is given to the original buyer, or his vendee, if his post office address is known, and within a period of thirty days after the mailing of such notice. Such notice shall inform such buyer or his vendee of his rights hereunder. Whenever the post office address of such person is not known, notice shall be published in a newspaper published at Jackson, Mississippi, the capital of the state, giving a description of such land for a period of two weeks, and of the right of such buyers, or their vendees. No deed shall be made to such buyer or his vendee until such person shall make affidavit that he bought the same in good faith and has not since sold his interest therein. Provided nothing in this act shall be construed to in any wise affect any litigation now pending with reference to or concerning any land in which the state may have or claim title."
It will be observed that the first portion of section 2 of this act, as above quoted, provides to whom and at what price lands situated in municipalities and divided into blocks and lots may be sold, where the same had theretofore escheated to or title thereto had become vested in the state, and where the sale has been made at a fair and reasonable price. Then the remaining provisions of this section are to the effect that "no land heretofore sold, or attempted to be sold, shall be sold until notice by registered mail is given to the original buyer, or his vendee," etc.
There are many rules or canons of construction to be followed in interpreting the meaning of a statute, but they all revolve in harmony around the one question of the intent and purpose of the Legislature in its enactment. As was said by Judge Anderson in the case of Hart v. Backstrom, 148 Miss. 13, 113 So. 898, 904, when construing section 2 of chapter 185 of the Laws of 1926, now under consideration, that: "It is an effort on the part of the state to do justice to those who, in good faith, had attempted to purchase state lands, and who (both they and the land commissioner) thought they were getting valid titles at the time of purchase, by giving such persons an opportunity, not to take the lands at the price contracted for, but at their appraised value at the time of their application after the passage of the act." It is not sound to hold that the Legislature intended to grant purchasers, under invalid patents, of blocks and lots of land situated in municipalities of the state in and outside of the city of Jackson, other than seat of government lands, where the patents were issued prior to the passage of chapter 185 of the Laws of 1926, the rights conferred by this act and deny the same to purchasers of blocks and lots of land from the state which had been ceded to the state as seat of government lands. Because of the quantity of seat of government lands divided into blocks and lots and otherwise sold by the state, the rights of many of her citizens are involved as in cases of the issuance of invalid patents to other lands in municipalities. The same purpose is to be served and the same wrong is to be remedied in the one instance as in the other. Moreover, it was expressly held in the case of Hart v. Backstrom, supra, that chapter 185 of the Laws of 1926 is to be construed as a whole, and that section 2 thereof is a limitation upon the right of sale referred to in section 1 thereof. Seat of government lands surveyed into blocks and lots in the city of Jackson, and lands situated in municipalities generally, which have been divided into blocks and lots, are both referred to and authorized to be sold under section 1 of this act; and section 2 thereof, being a limitation upon the power of sale referred to in section 1, excepts from the power of sale vested in the Land Commissioner and the other officials therein mentioned all lands theretofore sold, or attempted to be sold, until notice is given to the original purchaser, or his vendee. This must be done before the lands are available for sale.
It is not alleged in the bill of complaint that the patent issued to W.W. Moore, as the original buyer of these lands, was not issued at a fair and reasonable price; nor are there sufficient facts alleged to show that the original patent was not obtained in good faith.
It may also be observed, in considering the ground of demurrer which challenges the sufficiency of the bill as a whole, that the appellee does not allege that he is in possession of the land in question, or that there is no adverse occupancy. This is necessary in a suit to confirm a title other than a tax title. Section 403, Code 1930; Griffith's Chancery Practice, section 217, page 215.
Reversed and remanded.