Opinion
No. 38186.
January 14, 1952.
1. Sixteenth sections — tax sale to State — forfeited tax land patent.
If by virtue of previous valid tax sales to it, the State had acquired the fee simple title to sixteenth section lands, such title will pass to the grantee under forfeited tax land patents duly executed by the officer so authorized by statute at the time of their execution.
2. Sixteenth sections — leased land — tax sales.
Where sixteenth section lands had been leased by the township trustees on February 1, 1850, for 99 years, a tax sale thereafter made to the State carried title only to the unexpired lease and forfeited tax land patents by the auditor conveyed only such title as the State had through such tax sale, that is to say, title to the unexpired lease, and not a title in fee simple.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Hinds County; V.J. STRICKER, Chancellor.
L.A. Wyatt, for appellants.
I. The State of Mississippi had the power to sell this school land in fee simple and to execute deeds conveying fee simple title. Jones v. Madison County, 72 Miss. 777, 18 So. 87; Street v. City of Columbus, 75 Miss. 822, 23 So. 733; Pace v. State of Mississippi, 191 Miss. 780, 4 So.2d 270; Lambert v. State, (Miss.), 51 So.2d 201; Cooper v. Roberts, 18 How. 173, 15 L.Ed. 383; Alabama v. Schmidt, 232 U.S. 167, 58 L.Ed. 555; Louisiana v. Joyce, 261 Fed. 128, cert. denied 253 U.S. 484, 64 L.Ed. 1024; Secs. 2015-2021 Code 1871; Chap. 1, Laws 1870; Secs. 737-740, Code 1880; Sec. 211 Const. 1890; Secs. 4144-4148 Code 1892; Codes of 1906, 1917, 1927, 1930, 1942 — Table of same sections in.
II. Equity will protect the property right created by the ancient deed from the State to complainants' predecessor and uninterrupted possession thereunder for seventy years. Grand Gulf R.R. Banking Co. v. Bryan, 8 S. M. 234, 279; Stevensons' Heirs v. McReary, 20 Miss. (12 S. M.) 2, 54; Warren County v. Lampkin, 93 Miss. 123, 46 So. 497; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Bruce, et al. v. Jones, 117 Miss. 207, 78 So. 9; State v. Knapp, Stout Co., 136 Miss. 709, 101 So. 432; Trustees of Schools of Township No. 8 v. Lilly, 373 Ill. 431, 26 N.E.2d 489.
III. Complainants' title cannot be successfully assailed after twenty-five years adverse possession under deeds creating claim in fee simple. Brown v. Issaquena County, 54 Miss. 230; Carroll County v. Estes, 72 Miss. 171, 16 So. 908; Amite County v. Steen, 72 Miss. 567, 17 So. 930; Forsdick v. Tallahatchie County, 76 Miss. 622, 24 So. 962; Y. M.V.R. Co. v. Bolivar County, 146 Miss. 30, 111 So. 581; Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, 568; Jones v. Gulf Refining Co., 202 Miss. 705, 709, 32 So.2d 435, 34 So.2d 735; Sumrall v. State, (Miss.) 46 So.2d 549, 48 So.2d 502; Lambert v. State, (Miss.) 51 So.2d 201; LeFlore County v. Bush, 76 Miss. 551, 25 So. 351.
IV. The State and its subdivisions are now barred by laches to deny the fee simple title of appellants to this land. Sec. 4147 Code 1892, now Sec. 6594 Code 1942; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Aetna Ins. Co. v. Robertson, 134 Miss. 343, 94 So. 7, 27; State v. Woodruff, 170 Miss. 744, 150 So. 760, 765; City of Jackson v. A. V.R.R., 172 Miss. 528, 160 So. 602.
V. The State and County are now estopped to deny the recitals of their own deed. City of Vicksburg v. Lombard, 51 Miss. 111, 126; Cutler v. Madison County, 56 Miss. 115, 120; Aberdeen v. Sykes, 59 Miss. 236, 239; Ingram Day Lbr. Co. v. Robertson, 129 Miss. 365, 92 So. 289; City of Jackson v. Merchants Bank Trust Co., 112 Miss. 537, 73 So. 573.
Avery Putnam, and Matthew Harper, Jr., Assistant Attorney General, for appellees.
On the suggestion of error in Sumrall v. State, et al., 48 So.2d 502, Judge Hall, in rendering the opinion of the Court, stated: "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 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 the limitations, whatever its effect in favor of appellants as to the lease, did not run against the reversion'."
We respectfully submit that at the time the deeds were executed by Gwin, that there was a valid and subsisting ninety-nine year lease existing as to the property involved, which lease did not expire until February 1, 1950, and that whatever possession was exercised over the property by the appellants and their predecessors did not run against the reversion, but only as to the unexpired portion of the ninety-nine year leasehold interest.
This Court in the case of City of Jackson v. Alabama Vicksburg R.R. Co., 172 Miss. 528, 160 So. 602, cited by appellants, has pointed out that in a case where many years have passed and records have been lost and facts concerning transactions are no more, the doctrine of estoppel may apply. The Court said: "This is the type of case in which the doctrine ought to be applied. The principle applies where on account of lapse of time evidence is lost."
It is not so in the case now before the Court, that the evidence is lost. All of the public records are available, the proof is adequate and the records are complete on what was done and it was from these records that the trial judge concluded against appellants in all of the contentions here being made.
It is general knowledge that statutes of limitations do not run against the State of Mississippi and its subdivisions. Lauderdale County v. East Mississippi Mills Co., (Miss.), 16 So. 210; Penick v. Floyd Willis Cotton Co., 119 Miss. 828, 81 So. 540; Weiler Haas v. Monroe County, 76 Miss. 492, 25 So. 352.
Appellees do not deny, but on the other hand admit, that the appellants and their predecessors in title had the right to the possession of said lands under the ninety-nine year lease executed in 1851 to William Varnell, which lease did not expire until February 1, 1950. No acts of possession are shown on the part of the appellants or their predecessors in title which are inconsistent with those of any other lessee under a ninety-nine year lease.
No evidence was offered to show that appellants or their predecessors had ever made known to the County or State any claim on their part of the fee simple title to the property involved in the suit until the filing of the suit on November 14, 1949, which was less than three months prior to the expiration of the ninety-nine year lease. Sec. 6594 of the Code of 1942 does not direct the filing of any suit by the County or State until some person claims land in fee. We submit that in this case no claim to the fee has been made known to the County until the filing of this suit and that the doctrine of laches is not applicable in this case. Sumrall v. State, et al., (Sugg. of error sustained), 48 So.2d 502, 15 Am. Jur. 498.
The pleadings in this cause, by John D. Reese and others, as complainants, and the State, Hinds County, and Robert M. Mayo, County Superintendent of Education, as defendants, presented the sole issue of whether or not the complainants are the owners in fee simple of the 160 acres of 16th Section lands, in Hinds County, here in question. At the conclusion of the evidence, the chancellor dismissed the original bill, and confirmed the fee title to the said lands in the State as prayed for in the cross-bill. The complainants appeal.
The proof showed that patents to these lands were executed by S. Gwin, Auditor, on February 7, 1878, and March 4, 1885. The instruments recited that the lands therein described had been sold to the State on March 13, 1876, and March 3, 1884, respectively, for the taxes due. Complainants, by mesne conveyances, became the successors in such title as passed thereby.
(Hn 1) If the State, at the time of the execution of the patents, was, by virtue of the previous tax sales, vested with the fee title to these lands, then obviously, complainants obtained the fee. Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126, 568; Jones v. Gulf Refining Company, 202 Miss. 705, 32 So.2d 435, 34 So.2d 735. In the former case, deeds were delivered, although they were executed by the President of the Board of School Directors instead of by the school directors themselves — an irregularity — at a time when no valid lease was outstanding. In the latter case, there was no proof either of a valid outstanding lease, or of a sale. But the Court indulged the presumption of regularity, and held, therefore, that the State possessed, and could convey, the fee title.
The trouble in the present case, however, is that the proof also showed that the lands in controversy were leased, in accordance with law, by the township trustees on February 1, 1850, for a period of 99 years by an instrument, duly recorded on June 23, 1851. While the Constitution of 1832 did not prohibit the sale of Sixteenth Section lands, the above mentioned act of the township trustees constituted a lease, and not a sale.
It is true also that the Constitution of 1869 contained no prohibition against the sale of Sixteenth Section lands, and that Sections 2015 to 2019 inclusive, Code of 1871, in fact expressly authorized such sales, and such authority existed during the period from 1871 to 1878. But this record is devoid of proof of any lawful sale of these lands during that period, or at any time, whereby the fee title could have been vested in the State, in case of a subsequent tax sale. Consequently, the actual execution and recordation of a 99-year lease of these lands, many years before, overwhelms any potential benefits arising from the mere presumption of regularity on account of the patents from the auditor.
(Hn 2) It is clear that the State, on account of previous tax sales, obtained title only to the unexpired lease, and not to the fee. Consequently, the patents from the auditor conveyed only such title as the State had previously acquired, namely, title to the unexpired 99-year lease. Sumrall v. State, 209 Miss. 761, 48 So.2d 502.
The conclusion, which we have reached, likewise disposes of the appellants' contentions that equity should award them the fee on account of their seventy years adverse possession under the patents, and that the State and its subdivisions should be barred both by laches and by estoppel to deny the recitals contained in the patents.
Affirmed.
Kyle, J., took no part.