Opinion
No. 34587.
May 26, 1941. Suggestion of Error Overruled June 14, 1941.
1. EQUITY.
The doctrine of "laches," although resembling "limitations," is not based upon, nor bound by, any express statute of limitations, and the doctrine applies where it would be practically unjust to give a remedy, either because the applicant has by his conduct done that which might be fairly regarded as equivalent to a waiver of his remedy, or where by his conduct and neglect he has, though perhaps not waiving that remedy, put the other party in a situation in which it would not be reasonable to place him if the remedy were to be afterwards asserted.
2. DRAINS.
Where owners of land in a drainage district delayed twenty years after district was organized before filing suit against district's commissioners and bondholders to have district declared illegal and dissolved, and chancery court wherein proceedings respecting organization of district were conducted had jurisdiction of subject matter and parties, landowners were precluded from relief by "laches," and it was immaterial that statutory proceedings were had approximately nine years before commencement of suit to re-establish records, which had been destroyed by fire, respecting district's organization (Code 1930, sec. 2346).
3. RECORDS.
The object of statute providing that a lost, stolen or destroyed record shall not constitute "constructive notice" longer than three years from the loss, theft or destruction thereof unless within that time the instrument is again placed on record or proceedings commenced to perfect the record is to restore constructive notice (Code 1930, sec. 2346).
4. RECORDS.
A proceeding to restore lost records respecting organization of a drainage district under statute providing that a lost, stolen or destroyed record shall not constitute constructive notice longer than three years from the loss, theft or destruction thereof unless within that time the instrument is again placed on record or proceedings commenced to perfect record neither validated nor invalidated destroyed records (Code 1930, sec. 2346).
5. DRAINS.
Owners of land in a drainage district could not maintain a suit to have district declared illegal and dissolved on ground that fraud was practiced in procuring signatures of landowners to waiver of process in proceedings under statute to restore lost records respecting district's organization, where allegations in bill respecting fraud did not allege facts relied on as constituting fraud (Code 1930, sec. 2346).
6. DRAINS.
The curative statutes ratifying and declaring valid proceedings respecting organization of drainage districts and the issuance of bonds by such districts validated any defect in proceedings concerning organization of the Meridian Creek Drainage District and the issuance of bonds by that district (Laws 1922, chap. 295; Laws 1924, chap. 225; Laws 1926, chap. 280).
7. DRAINS.
The curative statutes ratifying and declaring valid proceedings respecting the organization of drainage districts and the issuance of bonds by such districts are valid (Laws 1922, chap. 295; Laws 1924, chap. 225; Laws 1926, chap. 280).
APPEAL from chancery court of Calhoun county, HON. L.A. SMITH, SR., Chancellor.
Milton Williams, of Memphis, Tenn., and Marshall Perry, of Grenada, for appellants.
Laches or limitations or failure of complainants or these landowners to heretofore bring suit, does not apply where landowners' titles and deeds far outdate any bonds, and where the landowners remained in possession, and continued to build tenant houses and generally improve their lands and farms.
Sowell v. Rankin, 120 Miss. 458, 82 So. 317; Sec. 33, p. 33, Griffith's Chancery Practice; 64 S.E. (W. Va.) 740, 780; 267 Fed. 699; 21 C.J. 215; 154 U.S. 450; Secs. 2146, 2147, 2286, 2312, Code of 1930.
Record did not constitute notice after "three years," but it was nine years or 1931 before new proceedings were attempted. Therefore would it not appear that the legal establishment of the district was not attempted until 1931 when the said pencilled, forged and undated waiver was obtained from these landowners.
Sec. 3185, 1906 Miss. Code; Sec. 2346, Code of 1930; Dunn v. Dent, 153 So. 798, 169 Miss. 574; Miller, State Rev. Agent, v. Tucker et al., 105 So. 774; 281 P. 454; 242 N.Y. Supp. 142.
Accident, mistake or fraud, "arises by presumption from certain states of facts, in cases (1) of confidential relation; (2) where a trustee deals with himself; (3) where the consideration paid is shockingly inadequate."
Griffith's Chan. Practice, p. 657, sec. 589.
Upon showing of legal or constructive fraud, accident or mistake, or complete failure of consideration, "The rule is relaxed" and complainants are thus entitled to show these matters and present their proof.
Secs. 33, 597, Griffith's Chan. Practice; Sec. 364, Code of 1930; Wolff v. Hopkins, 145 Miss. 827, 111 So. 290; McKinney et al. v. Adams, 95 Miss. 832, 50 So. 474; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Peterson v. Kittredge, 65 Miss. 33, 3 So. 65.
Chapter 255, Laws of 1924, was passed four years after attempted establishment of Meridian Creek drainage district in 1920, said Chapter 225 providing for the validation of any prior issued drainage bonds, "notwithstanding any defect or omission or irregularity in the proceedings," is an ex post facto law and appears to be void and unconstitutional.
Sec. 16, Miss. Const. 1890; Rice v. Smith, 72 Miss. 42, 16 So. 417; Stone et al. v. Y. M.V.R.R. Co., 62 Miss. 607, 52 Am. Rep. 193; Stone et al. v. Natchez, Jackson Columbus R.R. Co., 62 Miss. 646; Miss. Railroad Com. v. G. S.I.R.R. Co., 78 Miss. 750, 29 So. 789; Dingey v. Paxton, 60 Miss. 1038, 1053, 1054; Miss. R.R. Com. v. G. S.I.R.R., 78 Miss. 750; Barton v. State, 94 Miss. 375, 47 So. 521; Miller Lux, Inc. v. Sacramento, etc., Dr. Dist., 256 U.S. 129, 65 L.Ed. 859.
Thos. L. Haman, of Houston, for appellee, Meridian Creek Drainage District.
It is argued inferentially that the liens created in favor of the District by the procedure and decrees of organization, assessment, etc., were lost when the original records were destroyed in 1922 when the courthouse of the county was burned, because the records were not restored within the three years given by the statute enacted after the destruction of the records by procedure thereunder within the three years; and that the restoration of the records, impressing the original lien, was a re-creation of the lien, or the creation of a new lien.
The order of restoration of the records merely adjudicated an existing lien, and furnished constructive notice thereof, of which the owners of the land in the District necessarily had actual notice, but the owners of the land subject to the lien needed notice to the world of the limitations of the lien for their protection.
The facts shown in the appellants' bill of complaint with its exhibits show that the liens existed, even without restoration of the records. C.R. Bolton, of Tupelo, for appellee, People's Bank Trust Co.
The doctrine of laches would prevent a court of equity from granting any relief in this case.
Sec. 33, Griffith's Chan. Practice.
Section 2346 merely provides that unless the record is re-established within three years from the loss, it shall cease to be constructive notice. There is expressed in the statute no sort of limitation upon the establishment of lost records, and it has to do solely with the matter of constructive notice. The demurrer was properly sustained by the court below for the further reason that the Legislature had by successive acts validated the organization and issuance of bonds for drainage districts and these acts cured any defects that there might have been in the proceedings for the organization of this district and issuance of the bonds.
Chap. 295, Laws 1922; Chap. 225, Laws 1924; Chap. 280, Laws 1926.
The validity and constitutionality of these acts is expressly upheld in the case of Reed v. Norman-Breaux Lbr. Co., 142 Miss. 756, 107 So. 545.
Henley, Jones Woodliff, of Hazlehurst and Jackson, for appellees.
Parties relying upon fraud must distinctively and positively allege it.
Co-operative Oil Co. v. Greenwood Agency Co., 114 So. 397, 148 Miss. 536.
The mere general allegation that property was obtained by fraudulent conveyances or misrepresentation is insufficient, and the facts constituting such fraud or misrepresentation must be set out.
Mobile Savings Bank v. Bd. of Sup'rs, Oktibbeha County, 22 Fed. 580; Otts Finance Co. v. Myers, 152 So. 834, 169 Miss. 407; The Praetorians v. Thompson, 133 So. 228, 160 Miss. 85.
In view of the fact that the records were correctly restored, before the complainants would be entitled to invalidate the restoration of the records they would be required to show that the records as restored would be incorrect, and they had thereby been injured. There is no allegation in either the original complaint or in the supplemental complaint that the records were not correctly restored.
The Praetorians v. Thompson, 133 So. 228, 160 Miss. 85.
The destruction of records by fire did not affect the validity of the Drainage District which has been previously organized, or of the outstanding bonds.
Argued orally by Marshall Perry and Milton Williams, for appellants, and by C.R. Bolton and W.S. Henley, for appellees.
Appellants are landowners in the Meridian Creek Drainage District. The appellees are the commissioners of the district and bondholders of the district. Appellants in their bill sought to have the district declared illegal and void and dissolved. The cause was heard on bill, supplemental bill, exhibits, demurrers, answer and agreement of counsel resulting in a decree dismissing the bill. From that decree, this appeal is prosecuted.
The bill charges that the district was never legally organized in that the petition therefor did not contain the signatures of a sufficient number of landowners in the district, and that there was no process served on the remaining landowners; that the district was organized in 1920 and all the proceedings organizing the district were burned in 1922 when the courthouse of the county was destroyed by fire; that by reason of such destruction the district was void without the right to further operate as such; that an effort was made to restore the lost records in 1931 under the authority of Section 2346 of the Code of 1930; that such proceedings were void because not begun within three years after the destruction and for the further reason that J.A. Sims, one of the defendants, was guilty of fraud in procuring the signatures of landowners of the district waiving process; that the assessment of benefits was more than the value of the land; that there was no need for the formation of the drainage district, and that the landowners had received no pay as damages for the right-of-way of the ditch. Appellees answered the bill denying all of its material allegations and charged further that appellants had been guilty of laches in the long delay in filing the bill; that the questions involved were res adjudicata and that the organization of the district and the issuance of the bonds and all other proceedings in the matter had been several times validated by the Legislature. The proceedings organizing the district which was re-established under Section 2346 were made exhibits.
The district was organized in February, 1920. The bill in this cause was filed in December, 1940, more than twenty years after the organization of the district. First, we will take up the defense of laches: The doctrine of laches is thus stated in Section 33 of Griffith's Chancery Practice: "The doctrine of laches, although resembling limitations, is not based upon, nor bound by, any express statute of limitations. It is a rule peculiar to and inherent in courts of equity; and it applies where it would be practically unjust to give a remedy, either because the applicant has by his conduct done that which might be fairly regarded as equivalent to a waiver of his remedy, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were to be afterwards asserted. A long or protracted delay in the prosecution of rights is presumed to have produced the situation last mentioned and equity looks with so little favor upon such prosecutions that it will not entertain them, although no express statute of limitations is available, — unless facts are shown which will rebut the presumption of injustice arising out of the apparently undue delay, or which will excuse the same." Comans et al. v. Tapley et al., 101 Miss. 203, 223, 57 So. 567, Ann. Cas. 1914B, 307. We are of opinion that this doctrine applies here in its full force. A delay of twenty years under the facts and circumstances of this case was too long. The proceeding under Section 2346 of the Code, had in 1931, to re-establish the destroyed record of the organization of the district did not have any bearing on the question of appellant's laches. The object of that statute as shown by the title and its language was to restore constructive notice. The proceeding under the statute neither validated nor invalidated the destroyed record. The charge in the bill that fraud was practiced in procuring the signatures of some of the landowners to the waiver of process required by that statute is without merit. A simple charge of fraud is not sufficient; it is a conclusion from facts. It was therefore necessary to charge in the bill the facts which were relied on as constituting fraud.
Although not necessary to a disposition of the case, we feel inclined to go further. We are of opinion that the curative statutes, Chapter 295, Laws of 1922, Chapter 225, Laws of 1924, and Chapter 280, Laws of 1926, validated any defect in the proceedings organizing the district and providing for the issuance of the bonds. Those statutes simply provided that such proceedings were ratified and confirmed and declared to be valid, including the districts organized thereunder. Such curative statutes are valid. Reed v. Norman-Breaux Lumber Co., 142 Miss. 756, 107 So. 545.
Here we have a district organized through the chancery court more than twenty years before the bill was filed in this case. Bonds have been sold; and a drainage canal has been dug; during that time taxes have been levied and collected annually. The Court had jurisdiction of the subject matter and the parties in the manner provided by law. It is too late now to upset the whole scheme. The apparent attack on the constitutionality of our drainage laws is not serious enough to call for discussion by our Court.
Affirmed.