Summary
In State v. Sanders, 203 Miss. 475, 35 So.2d 529 (1948), the court was seemingly speaking to the instant situation where recovery of excess tuition payments would necessarily be paid from the state treasury.
Summary of this case from Jagnandan v. GilesOpinion
No. 36780.
May 24, 1948.
1. TAXATION.
Where suit would lie against state to extent of permitting complainants to seek cancellation of tax sales and to quiet and confirm their title in so far as such sales were concerned, court would likewise have jurisdiction in proceeding to cancel any other alleged outstanding interest claimed by state in land as an incident to right of obtaining full relief (Code 1942, secs. 717, 1325).
2. STATES.
Generally, a sovereign state and its political subdivisions cannot be sued in the courts except upon express statutory consent of state.
3. STATES.
Rule that state and its subdivisions cannot be sued except on express statutory consent of state is not applicable when suit is against officer or agent of state and relief demanded requires no affirmative official action on part of state nor affirmative discharge of any obligation which belongs to state in its political capacity, although officers or agents have no personal interest and hold or act only by virtue of title of state and as its agents.
4. STATES.
State cannot be sued in its sovereign capacity by person claiming title through a Swamp Land patent and who seeks to have title quieted and confirmed, unless right to do so can be asserted either under statute authorizing suits to cancel tax titles or under statute relating to confirmation of title based on tax forfeited land patent (Code 1942, secs. 717, 1315-1322, 1325).
APPEAL from the Chancery Court of Jones County.
Greek L. Rice, Attorney General, by John E. Stone, Assistant Attorney General, for appellants.
The State of Mississippi has not consented to be sued in this cause and therefore the court has no jurisdiction.
State v. Woodruff, 170 Miss. 744, 766, 150 So. 760; Gulf Export Co. v. State et al., 112 Miss. 452, 458, 73 So. 281; Mississippi Centennial Exposition Co. v. Luderbach et al., 123 Miss. 828, 847, 86 So. 517; Mississippi Live Stock Sanitary Board v. Williams et al., 133 Miss. 98, 105, 97 So. 523; Stewart v. State Highway Commission et al., 166 Miss. 43, 49, 148 So. 218; Ayres et al. v. Board of Trustees of Leake County Agricultural High School et al., 134 Miss. 363, 98 So. 847; Smith v. Doehler Metal Furniture Co. et al., 195 Miss. 538, 545, 15 So.2d 421; Principality of Monaco v. State, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282, 1289.
The State is not estopped to contest complainant's title.
Gift v. Love, 164 Miss. 442, 461, 144 So. 562; Eastman Oil Mills v. State 130 Miss. 63, 71, 93 So. 484; Edwards Hotel v. City of Jackson, 96 Miss. 547, 575, 51 So. 802; Cleveland State Bank v. Cotton Exchange Bank, 119 Miss. 868, 81 So. 170; American Oil Co. v. Marion County, 187 Miss. 148, 192 So. 296; City of Jackson v. Merchants' Bank Trust Co., 112 Miss. 537, 73 So. 573; Code of 1857, Ch. 57, Arts. 14, 25; 31 C.J.S. 412, Sec. 140.
Mere occupancy alone is insufficient to raise the presumption of a lost grant.
Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84; Dees v. Kingman, 119 Miss. 199, 80 So. 528; Leavenworth Son, Inc., v. Hunter, 150 Miss. 245, 116 So. 593; Willoughby v. Caston, 111 Miss. 688, 691, 72 So. 129; Laws of 1877, Ch. 49.
Title to this property is vested in the State of Mississippi.
Jackson v. Dilworth, 39 Miss. 772, 778; Clements v. Anderson, 46 Miss. 581, 698; Woodruff v. State, 77 Miss. 68, 108, 25 So. 483; Ross v. Milner, 194 Miss. 497, 505, 12 So.2d 917; Edward Hines Yellow Pine Trustees v. State ex rel. Moore, 133 Miss. 334, 97 So. 552, 134 Miss. 533, 98 So. 158; Wineman v. Gastrell, 53 F. 697; Laws of 1852, Ch. 14; Laws of 1890, Ch. 44; Act of Congress, September 28, 1850, Chapter 84.
The statute requiring the entire assessment roll to be filed in both judicial districts of Jones County is unconstitutional.
Horton v. King, 71 So. 9, 113 Miss. 60, 73 So. 871; Bullock v. Board of Sup'rs of Covington County (Miss.), 77 So. 662; Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 107, 86 So. 755; Laws of 1906, Ch. 169.
Buchanan Montgomery, of Laurel, for appellees.
The Legislature having granted leave to sue the State by Chapter 196, Laws of 1934, for the purpose of cancelling void tax sales, the State, in the absence of a provision in the statute to the contrary, is subject to all rules governing procedure of the court in cloud suits.
Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888; State v. Woodruff et al., 170 Miss. 744, 150 So. 760, 762; State v. Woodruff, 83 Miss. 111, 36 So. 79; Code of 1942, Secs. 717, 1315-1322, 1325; Laws of 1934, Ch. 196; Griffith's Mississippi Chancery Practice, Secs. 115, 211.
Suit may be brought against state and county officers who are custodians of a purported muniment or evidence of title, which is void for want of due process, to cancel such purported muniment of title as a cloud upon the title of complainants, and such a suit is not a suit against the State from which immunity may be claimed.
State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897; Dollman v. Moore, 70 Miss. 267, 12 So. 23; City of Jackson v. State, 156 Miss. 306, 126 So. 2; Code of 1930, Secs. 404, 1381; Code of 1942, Secs. 689, 1324; Laws of 1871, Ch. 294; Laws of 1877, Ch. 14.
In all legislative acts providing for suits on behalf of the State to cancel swamp land patents illegally obtained, there is a provision for the protection of innocent purchasers for value, who have purchased from the patentees.
Edward Hines Yellow Pine Trustees et al. v. State ex rel. Moore, 133 Miss. 334, 97 So. 552; Laws of 1861, Ch. 109; Laws of 1900, Ch. 44.
The doctrine of presumption of grant applies with equal force against the county, a subdivision of the State, as against the State.
Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Leavenworth Son v. Hunter, 150 Miss. 245, 116 So. 593; Presley v. Haynes, 182 Miss. 44, 180 So. 71; Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435; Foster et al. v. Jefferson County, 202 Miss. 629, 32 So.2d 126.
Complainants are not estopped to attack the decree of March 22, 1867, and to claim title under the doctrine of presumption of grant and to have all claim of title under the said Welborn decree cancelled as a cloud upon their title.
State v. Woodruff, supra; Mayfield v. Barnard, 43 Miss. 270; Code of 1871, Sec. 975; Griffith's Mississippi Chancery Practice, Secs. 624, 662.
The swamp land patents issued to A.B. Fall and C.M. Herrington on October 20, 1881, under the act of the Legislature of February 1, 1877, operated to divest from the State of Mississippi and its subdivisions all title to the lands in suit and they are estopped to claim title thereto.
Edward Hines Yellow Pine Trustee et al. v. State ex rel. Moore, supra; Adams v. First National Bank of Greenwood, 103 Miss. 744, 60 So. 770; Code of 1892, Sec. 304; Laws of 1871, Ch. 284; Laws of 1877, Ch. 14.
The tax sales of September 19, 1932, for 1931 taxes, and of September 17, 1934, for 1933 taxes, were utterly void for the reason that the Board of Supervisors of Jones County never acquired jurisdiction of the taxpayers in either of the years 1930 or 1932 in the matter of assessment of lands in said county.
Lindsley et al. v. Board of Sup'rs of Coahoma County, 69 Miss. 815, 11 So. 336; Code of 1930, Secs. 3148, 3175, 3407; Constitution of 1890, Sec. 112; Laws of 1906, Ch. 169.
The filing of the tax roll is the beginning of a suit against taxpayers.
Hunter v. Bennett, 149 Miss. 368, 115 So. 204.
Process for taxpayers is by publication of notice.
Pettibone v. Wells, 181 Miss. 425, 179 So. 336.
Steps precedent to issuance of process by publication must strictly follow statute, or court does not obtain jurisdiction of parties defendant.
Moore v. Summerville, 80 Miss. 323, 31 So. 793; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Mercantile Acceptance Corporation v. Hedgepeth, 147 Miss. 717, 112 So. 872; Robertson v. First National Bank of Greenwood, 115 Miss. 840, 76 So. 689.
The notice to taxpayers for 1930 showed no return date.
Code of 1930, Sec. 3162.
The minutes of the board do not show jurisdictional facts at a lawful meeting.
Henderson Molphus Co. v. Gammill, supra; Gordan v. Smith, 154 Miss. 787, 122 So. 762; Hunter v. Bennett; supra; Sharp v. Smith, 180 Miss. 887, 178 So. 595.
The tax sale of September 17, 1934, for 1933 taxes, was void and conveyed no title to the State of Mississippi for the further reason that there were separate sales of contiguous parcels of land constituting one tract of land, all of which was assessed to the same owner in violation of Section 3249 of the Code of 1930.
Gregory v. Brogan, 74 Miss. 694, 21 So. 521; Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563; Carter v. Moore, 183 Miss. 112, 183 So. 512; Cox v. Richerson, 186 Miss. 576, 191 So. 99; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815; State v. Roell, 192 Miss. 873, 7 So.2d 867; State v. Butler, 197 Miss. 218, 21 So.2d 650; Code of 1930, Sec. 3249.
Garner W. Green and Irwin W. Coleman, both of Jackson, and Archie B. Gray, of Houston, Tex., for appellee, Gulf Refining Company.
The basic title to Welborn and from him to the appellee should be herein sustained as valid, this being requisite to a proper protection of those who have acted upon the patent by Mississippi lawfully issued, the law as passed in 1861 protecting those purchasing for value in good faith, and under the act of 1888 and 1890 whereby substantially rectification was had and upon the faith whereof due purchase was made, and the public welfare would be clearly promoted if this Court could, consistently with its ideas as to what is proper, make a decision sustaining the validity of this basic title.
Adams v. Yazoo M.V.R. Co., 77 Miss. 194, 24 So. 200; Aetna Ins. Co. v. Robertson, 131 Miss. 343, 94 So. 7; Alexander v. Moye, 38 Miss. 640; Alfred v. State, 37 Miss. 296; Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 130 Miss. 825, 95 So. 134; Bishopric v. City of Jackson, 196 Miss. 720, 16 So.2d 776; Briscoe v. Buzbee, 163 Miss. 574, 143 So. 407; Brooks v. Shelton, 47 Miss. 243;
Brown v. Bank of Mississippi, 31 Miss. 454; Bullock v. Board of Sup'rs of Covington County (Miss.), 77 So. 662; State v. Butler, 197 Miss. 218, 21 So.2d 650; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; City of Jackson v. Merchant's Bank Trust Co., 112 Miss. 537, 73 So. 573; City of Jackson v. Alabama V.R. Co., 172 Miss. 528, 160 So. 602; Clanton v. Callender, 198 Miss. 614, 22 So.2d 487; Clements v. Anderson, 46 Miss. 581; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Conner v. Gray, 88 Miss. 489, 41 So. 186; Conard Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 So. 652; Davis v. Gulf Refining Co., 202 Miss. 808, 32 So.2d 133; Day v. Smith, 87 Miss. 395, 39 So. 526; Dingey v. Paxton, 60 Miss. 1038; Edward Hines Yellow Pine Trustees v. State, ex rel. Moore 133 Miss. 334, 97 So. 552; Elmer v. Holmes, 189 Miss. 785, 199 So. 84; Ford v. Wilson, 35 Miss. 490; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; Greenwood Ice Coal Co. v. Georgia Home Ins. Co., 72 Miss. 46, 17 So. 83; Griffin v. Ellis, 63 Miss. 348; Gully v. Jackson International Co., 165 Miss. 103, 145 So. 905; Hart v. Gardner, 81 Miss. 650, 33 So. 442; Hays v. State, 96 Miss. 153, 50 So. 557; Henry v. State, 87 Miss. 1, 88 Miss. 843 39 So. 856; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Hester v. Copiah County, 186 Miss. 716, 191 So. 496; Hiller v. Jones, 66 Miss. 636, 6 So. 465; Hinton v. Board of Sup'rs of Perry County, 84 Miss. 536, 36 So. 565; Horton v. King, 113 Miss. 60, 73 So. 871, 71 So. 9; Ingram Day Lumber Co. v. Robertson, 129 Miss. 365, 92 So. 289; Itawamba County v. Sheffield, 195 Miss. 359, 13 So.2d 649; Jackson v. Dilworth, 39 Miss. 772; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247; Jones v. Gulf Refining Co., 202 Miss. 705, 32 So.2d 435, 34 So.2d 735; Kennington-Saenger Theatres v. State ex rel. District Attorney, 196 Miss. 841, 18 So.2d 483; Lanier v. Booth, 50 Miss. 410; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815; Leavenworth Son v. Hunter, 150 Miss. 245, 116 So. 593; Lindsley v. Board of Sup'rs of Coahoma County, 69 Miss. 815, 11 So. 336; Marks v. Toney, 196 Miss. 572, 18 So.2d 452; State ex rel. McCullen v. Adams, 185 Miss. 606, 188 So. 551; McCaughn v. Young, 85 Miss. 277, 37 So. 839; State ex rel. McCullen v. Tate, 188 Miss. 865, 196 So. 755; Memphis C.R. Co. v. Scruggs, 50 Miss. 284; Meyer v. Morgan, 51 Miss. 21; State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897; Mulliner v. Bouldin, 159 Miss. 212, 131 So. 364; Native Lumber Co. v. Elmer, 117 Miss. 720, 78 So. 703; Nevill v. Matthews, Walk. (1 Miss.) 377; Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 86 So. 755; Phillips v. Wormley, 58 Miss. 398; Presley v. Haynes, 182 Miss. 44, 180 So. 71; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Russell Investment Corporation v. Russell, 182 Miss. 385, 182 So. 102; Scarborough v. Native Lumber Co., 118 Miss. 138, 79 So. 84; Shaw v. Laurel Oil Fertilizer Co., 92 Miss. 340, 45 So. 878; Southern Pine Co. v. Pigott, 93 Miss. 281, 47 So. 381; State ex rel. Jordan v. Mayor Commissioners of City of Greenwood, 157 Miss. 836, 127 So. 704: State v. Allen, 69 Miss. 508, 10 So. 473; State v. Butler, 197 Miss. 218, 21 So.2d 650; State ex rel. McCullen v. Sproles, 200 Miss. 678, 28 So.2d 218; State v. Wilkinson, 197 Miss. 628, 20 So.2d 193; Woodruff v. State, 77 Miss. 68, 25 So. 483; State ex rel. Rice v. Stewart, 184 Miss. 202, 184 So. 44; State v. Roell, 192 Miss. 873, 7 So.2d 867; State v. Lewis, 192 Miss. 890, 7 So.2d 871; State v. Harper, 195 Miss. 580, 15 So.2d 680, 16 So.2d 29; Sivley v. Summers, 57 Miss. 712; Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So.2d 100, 30 So.2d 398, 408; Trager v. Jenkins, 75 Miss. 676, 681, 23 So. 424; Warren v. Lamkin, 93 Miss. 123, 46 So. 497; Willoughby v. Caston, 111 Miss. 688, 72 So. 129; Wildberger v. Hartford Fire Ins. Co., 72 Miss. 338, 17 So. 282; Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247; Texas v. White, 7 Wall, 732; United States v. Chavez, 175 U.S. 509, 44 L.Ed. 255; West Carroll v. Gaddis, 34 L.A. Ann. 928; Wineman v. Gastrell, 53 F. 697; Busby v. Florida Cont. P.R. Co., 45 S.C. 312, 23 S.E. 50; Gelpcke v. Dubuque, 1 Wall. 175, 17 L.Ed. 520; Holmes v. Donald, 84 F.2d 188; Mills County v. Burlington Mo. R. Co., 107 U.S. 557, 27 L.Ed. 578; Code of 1857, Ch. 57; Code of 1942, Secs. 717, 1315, 1316, 1317, 1319, 1321, 4142; Laws of 1852, Ch. 14; Laws of 1861, Ch. 109; Laws of 1871, Ch. 284, Sec. 3; Laws of 1877, Ch. 14, Secs. 2, 3, 4, Ch. 15, Sec. 1, Ch. 49; Laws of 1888, Ch. 19, Sec. 1; Laws of 1890, Ch. 44; Laws of 1934, Ch. 196; U.S.C.A., Title 43, Secs. 982, 983; 13 Mississippi Digest, Statutes, Key No. 219; Griffith's Mississippi Chancery Practice, p. 708, Sec. 622; 1 Am. Jur. 757, Sec. 12; 20 Am. Jur. 231, Sec. 236; 41 Am. Jur. 498; 2 C.J. 876, Sec. 231; 36 C.J. 984; 46 C.J. 1093; 49 C.J. 506; Broom's Legal Maxims, pp. 165, 942, 949-951; Restatement of the Law, Agency, Secs. 102, 103.
Argued orally by J.R. Buchanan and Garner Green, for appellees.
The primary, if not the controlling, question argued on this appeal by the appellants is whether or not the suit will lie against the State in its sovereign capacity, or against its State Land Commissioner, who has jurisdiction over the public lands, since it is contended by them that the State has not given the express consent required for the filing of a suit of the character hereinafter set forth.
The sole heirs at law of D.R. Sanders, deceased, are shown herein to be the true, legal, and equitable owners of the SE 1/4 of Sec. 18, Township 9, Range 10 W., in Jones County, Mississippi, subject to an oil, gas and mineral lease thereon now owned by the Gulf Refining Company. They all filed their bill of complaint in this cause on May 20, 1947, to quiet and confirm their title and the said mineral lease as against the Board of Supervisors of Jones County, the State of Mississippi in its sovereign capacity, and W.L. McGahey, as State Land Commissioner, and asked for the cancellation of any purported claims of the said defendants as clouds upon the title of the said true owners. The bill of complaint also contains a prayer for general relief.
The complainants set forth a full, complete, and perfect deraignment of title, all appearing of record, from the United States Government down to and including the said D.R. Sanders, deceased, who died intestate after having executed the lease now owned by the Gulf Refining Company, one of the said complainants herein.
It is recognized, however, in the bill of complaint that on March 22, 1867, one Joel E. Welborn, a former Swamp Land Commissioner, was adjudged and decreed to have fraudulently obtained from the State of Mississippi the Swamp Land patent to this and nearly 100,000 acres of other land in Jones County after it had been first patented to the State pursuant to the Act of Congress of September 28, 1850. But it was further shown that at the time of the filing of the suit against the said Welborn in said County by the Board of Police thereof on September 27, 1859, the said Welborn had previously conveyed the E 1/2 of the said SE 1/4 to A.B. Fall by a deed duly executed and recorded on October 7, 1857, and that he had conveyed the W 1/2 thereof to Williams Andrews by a deed duly executed and recorded on November 26, 1858; that the said grantees were innocent purchasers for value of said land without notice of the fraud practiced by the said Welborn on the State when he procured his Swamp Land patent to this land during the year 1855; that neither Fall nor Andrews were parties to this suit; and that they were not, therefore, bound by the decree rendered in the said cause insofar as it attempted to cancel the patent to the said SE 1/4 of Sec. 18, Township 9 North, Range 10 West.
Moreover, it was further shown by the bill of complaint, and not denied in the answer of the State and its land commissioner, that thereafter, on October 20, 1881, the W 1/2 of the said SE 1/4 was conveyed by the State under a Swamp Land patent to A.B. Fall, and that the E 1/2 was conveyed on that date under such a patent to C.M. Herrington, all pursuant to Chapter 14 of the Acts of the State Legislature enacted on February 1, 1877, authorizing the sale of swamp lands of the State then "remaining unsold." That thereafter Fall conveyed his part of the land to Herrington, and the title then passed from him through mesne conveyances, all of which are likewise of record, until it became vested in the said D.R. Sanders, deceased. Therefore, it will be seen that any right or title that may have inured to the State by virtue of the decree in the suit of the Board of Police v. Welborn on March 22, 1867, was divested under the Swamp Land patents of October 20, 1881, in favor of the said Fall and Herrington, respectively, since the validity of the Act of the Legislature of February 1, 1877, authorizing the sale of swamp lands then remaining unsold is not challenged, nor is it pointed out to us either in the record or the briefs that there is any defect or illegality whatsoever in connection with the issuance of the said two patents of October 20, 1881.
The State merely claims that it again became vested with the title to this land under and by virtue of the decree in the suit of the Board of Police v. Welborn. That decree directed Welborn to convey the land to the complainant Board of Police of Jones Co., which was not done. The State was not a party to that suit, and the County was only entitled to the proceeds from any sale or resale of the land and to be used for the purposes provided for by the Act of Congress of September 28, 1850. But be that as it may, no appeal is taken from the decree in the present suit wherein the title of the complainants was quieted and confirmed as to the Board of Supervisors of Jones County, successor in office to the said Board of Police; and insofar as the State is concerned the land was later conveyed by it during the year of 1881 to the predecessors in title of the complainants as aforesaid.
Following the rendition of the decree in the suit against Welborn, the legislature by an Act of April 29, 1871, provided for the sale of this and other lands, and one Amos Deason was appointed as Swamp Land Commissioner to make said sales. He was enjoined from doing so by A.B. Fall and others on the ground that they were innocent purchasers from Welborn prior to the filing of the suit against him in 1859 and for other causes assigned. That injunction suit was not tried and the writ of injunction which was issued against said Deason was never dissolved, except by a voluntary dismissal of the suit by the complainants. It is contended that since the decree of dismissal does not provide that it was done "without prejudice," the suit was res judicata as to any rights now claimed through said A.B. Fall and William Andrews. However, we think that whatever may have been the effect of that decree of dismissal as to the rights claimed by Fall and others at that time is immaterial in the present suit, for the reason that the complainants herein are entitled to predicate their claim of title on the two patents issued by the State on October 20, 1881, in favor of Fall and Herrington, respectively.
It is also alleged and shown that the land in controversy was sold to the State for taxes in 1932, and again in 1934, while owned by and assessed to D.R. Sanders, and that thereafter, in 1939, a forfeited tax land patent was issued by the State to the said D.R. Sanders, now deceased. But the bill of complaint does not seek to confirm the title of the complainants under and by virtue of said patent, but, on the contrary, it alleges that the said tax sales were void and that the patent based thereon was likewise void on account of the invalid assessment on which said sales were made. Therefore, Chapter 309, Laws of 1940, Sections 1315 to 1322, inclusive Code 1942, has no application herein on the right to sue the State, since the complainants are claiming no title under a patent for lands forfeited to the State for the non-payment of taxes. Their theory is that no title passed to the state or to the patentee under such tax sales.
No good purpose would be served by setting forth in this opinion the facts which rendered the said assessments wholly void. The objections thereto are such as have been repeatedly adjudged in our former decisions to be well taken.
The proof discloses that the complainants and their predecesors in title had been in continuous, open, notorious, and and adverse possession of this land since the year 1881 and long prior thereto, and it is agreed that the records disclose the payment of taxes thereon at least for the period from 1895 to 1930, and that the amount paid for the patent in 1939 is sufficient to cover all taxes from 1930 to that date, when D.R. Sanders resumed payment of the taxes each year.
Thus it will be seen, both from the deraignment of title hereinbefore set forth and from the proof adduced at the trial, that the State has no right, title, or interest whatsoever, either legal or equitable in the lands in controversy; that on this record no case is presented which would have rendered it necessary for the State in its sovereign capacity to be made a defendant in this suit, except upon the theory that if the tax sales of 1932 and 1934 had been found to be valid, there would have been left the possibility, if not the probability, of the State being able to claim that it still owns the land by reason of some failure on the part of D.R. Sanders to comply with the law in the procurement of his patent thereto in 1939. And since he was in exclusive possession of said lands at all times subsequent to such tax sales, the two-year limitation, prescribed by Chapter 196, Laws of 1934, Section 717, Code 1942, on his right to sue for the cancellation of the State's alleged title on account of any defects, irregularities and illegalities in the said tax sales was not barred when the suit was filed.
Upon the ground last above stated, the State and its land commissioner concede on this appeal that the complainants "obtained jurisdiction below for the purpose of setting aside the tax sales complained of in the bill of complaint" and they say that it was for this reason that a special demurrer rather than a general demurrer was interposed to the jurisdiction. In other words, the appellants concede that the appellees had the right to bring this suit to cancel any claim that the State may have had on account of the said tax sales, but they deny that this carries with it the right to have their basic title, as deraigned down to D.R. Sanders from the Swamp Land patent issued to the said Joel E. Welborn and those later issued to A.B. Fall and C.M. Herrington, confirmed and quieted without an express statutory consent given by the State in that behalf.
The appellant, W.L. McGahey, State Land Commissioner, was evidently made a party defendant to the suit because of the fact that his refusal, which was based on the advice of the Attorney General pending further investigation of the facts of record, to disclaim on behalf of the State any right, title or interest in the land involved, was considered to be equivalent to a claim of the land on his part as such land commissioner, such as would have the effect of casting a doubt or suspicion upon the title of the complainants and so as to entitle them to have the same removed as a cloud thereon by a decree of the court, and to cancel and documentary evidence of title appearing of record in his office as a claim by the State to said land.
It being conceded by the appellants, as hereinbefore stated, that this suit will lie against the State under Chapter 196, Laws of 1934, Sec. 717, Code 1942, to the extent of permitting the complainants to at least have their title confirmed and quieted insofar as the tax sales of 1932 and 1934 are concerned, if same are void, and it otherwise appearing that at the time of the filing of this suit the records disclosed a good and perfect title then vested in the complainants, the remaining question is whether or not they were entitled to set forth in their bill of complaint the matters of record hereinbefore set forth which constitute the deraignment of their title in order that the court could determine whether or not they were entitled to have the same quieted and confirmed in the event it should find that the said tax sales were void. In this connection, Section 1325, Code 1942, expressly provides, among other things, as follows: "In bills to confirm title to real estate, and to cancel and remove clouds therefrom, the complainant must set forth in plain and concise language the deraignment of his title; and a mere statement therein that complainant is the real owner of the land shall be insufficient, unless good and valid reason be given why he does not deraign his title; . . ."
We are, therefore, of the opinion that if the court had jurisdiction of the suit to cancel the said tax sales and to quiet and confirm the title of complainants insofar as these sales were concerned, it would follow that in such a proceeding the court would likewise have jurisdiction to cancel any other alleged outstanding interest claimed by the State in the same land since "Equity delights to do complete justice and not by halves," and remove other clouds represented by a claim or claims of the state equally unfounded, and to thereupon inquire into and adjudicate the fact of whether or not those asking for relief had shown a good title in themselves that could be quieted and confirmed under the requirements of said Section 1325, Code 1942, supra. Griffith's Chan. Prac. Sec. 36.
While the case of State Mineral Lease Commission et al. v. Lawrence et al., 171 Miss. 442, 157 So. 897, is not directly in point on its particular facts, we think that the principle announced in that case and under the authorities therein cited is controlling as to the right to sue for the cancellation of any claim being asserted on behalf of the State by the Land Commissioner's office, as an agency of the State; and that what is there said is at least very persuasive, though not controlling, on the question of the right to sue the State in its sovereign capacity in a case of the character herein presented. This is true aside from the right to sue the State which would seem to follow as an incident to the right of obtaining full relief in the suit to quiet and confirm the title as to the two tax sales involved under said Chapter 196, Laws of 1934, Sec. 717, Code 1942, supra, in the light of the said Section 1325, Code 1942, from which we have hereinbefore quoted.
In the case above cited, the Court, after stating the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except upon the express statutory consent of the state, as held in State v. Woodruff, 170 Miss., 744, 150 So. 760, therein declared that "It does not apply when the suit is against an officer or agent of the state, and the relief demanded by the suit requires no affirmative official action on the part of the state nor the affirmative discharge of any obligation which belongs to the state in its political capacity, even though the officers or agents who are made defendants disclaim any personal interest in themselves and claim to hold or to act only by virtue of a title of the state and as its agents and servants. Thus it will be found, as illustrative of what has been above said, that nearly all the cases, wherein the rule of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require an appropriation or an expenditure therefrom, which being legislative in its character is a province exclusively of the political departments of the state. And in the less frequent number of cases where no money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative performance of some asserted obligation, the nature of which, and the process of its discharge, belong to the state in its political capacity." [ 171 Miss. 442, 157 So. 898.]
Thus it will be seen that the said Mineral Lease Commission case would sustain the right here to sue the State Land Commissioner for the cancellation of any claim that he may be making in regard to the land in controversy, in the exercise of his jurisdiction over the public lands on the theory that this land belongs to the State by virtue of the cancellation of the original patents thereto issued to Joel E. Welborn in 1855; but, the holding in that case recognizes that the rule announced in the Woodruff case, supra, is applicable when the State in its sovereign capacity "is actually made a party upon the record, or is actually necessary to be made a party in order to furnish the relief demanded by the suit." In the instant case the State is not actually shown to be a necessary party in order to entitle the complainants to a decree in quieting and confirming their title, except as to the relief sought by the cancellation of the two tax sales, since it had already patented the land away three times and the validity of the second one is not here challenged, but it "is actually made a party upon the record" for all the purposes of the suit.
At any rate, we hold that the suit in the instant case can be maintained against the State in its sovereign capacity for obtaining full relief as herein sought, and we do so as to the State itself solely because of the right which is conferred in that behalf by Chapter 196, Laws of 1934, Section 717, Code 1942, and from which consent to sue we thing it follows that under Section 1325, Code 1942, the complainants are not only authorized, but are required to set forth in their bill a sufficient deraignment of title in themselves to enable the court to determine whether or not they are entitled either to have their title quieted and confirmed or to cancel and remove clouds therefrom, without regard to whether the title involved in the tax sales remained after such sales in the former owner, D.R. Sanders, because of their invalidity, or passed to him under the forfeited tax land patent issued by the State in his favor on the theory of the validity of the assessments and sales as claimed by the State.
But let it be understood that the decision in the case of State Mineral Lease Commission et al. v. Lawrence et al., supra, is not to be hereby extended so as to permit the State to be sued in its sovereign capacity by any person claiming title through a Swamp Land patent and who seeks to have the same quieted and confirmed, unless the right to do so can also be asserted either under Chapter 196, Laws of 1934, Section 717, Code 1942, or Chapter 309, Laws of 1940, Sections 1315 to 1322, inclusive, Code 1942. However, Chapter 309, Laws of 1940, which is not applicable to this case, expressly provides that "No deraignment of complainant's title in such cases (brought under such statute) shall be required," although such deraignment is necessary under said Chapter 196, Laws of 1934, there being no provision therein to the contrary, because the general statute, Section 1325, Code 1942, would in such case control.
For the reasons hereinbefore stated, we are of the opinion that the action of the trial court in overruling the special demurrers and in rendering a decree on the merits canceling any claim that may be asserted either by the State or its Land Commissioner as clouds upon the title of the complainants and quieting and confirming such title as against the said defendants should be affirmed.
Affirmed.