Becker v. Columbia Bank

• Decision Date: 08 January 1917
• Docket Number: 17851
• Court: Mississippi Supreme Court
• Parties: BECKER ET AL. v. COLUMBIA BANK

73 So. 798

112 Miss. 819

BECKER ET AL. v. COLUMBIA BANK

No. 17851

Supreme Court of Mississippi

January 8, 1917

Division B

Appeal from the chancery court of Lawrence county, HON. R. E SHEAHY, Chancellor.

Suit to quiet title by Columbia Bank against F. F. Becker and others. From a decree for plaintiff, defendant appeals.

Appellee was complainant in the court below, and appellants were defendants. The bill filed in the lower court prays for the cancellation of appellant's claim of title to the land in question and removal of said claim as a cloud upon complainant's title. The land in question was acquired by the state of Mississippi from United States government as swamp land, and appellee's claim of title is based upon a swamp land patent issued by the state to one Bradshaw in 1902. Appellants' claim of title is based upon a patent issued by the state of Mississippi in 1871 to the Pearl River Improvement & Navigation Company. It is claimed that this land was subsequently sold by the tax collector of Lawrence county to the state of Mississippi for taxes alleged to be due and delinquent for the year 1883, and that the state thereafter deeded the land, in 1887, to one Phillips, through whom appellants deraign title. From a decree granting the relief prayed, this appeal is prosecuted.

Decree affirmed.

P. Z Jones, for appellant.

Does the evidence show that no bond was filed? The bill in the paragraph beginning about the middle of page 3 and ending about the middle of page 4, of the record, contains and presents the issues around which this litigation is to be fought. This challenges the validity of the patent issued by the state to the Pearl River Improvement & Navigation Company on June 27, 1871.

Failure to comply with the terms of the law under which the patent was issued, in that the company did not file a bond and that the bond was not approved by the Governor, and that the patent was not signed by the Governor and countersigned by the secretary of state.

The burden was on the complainants to sustain these allegations by the proof. It admitted that the state had issued a prior patent to the one under which it claimed and, unless this patent could be destroyed, the complainant would fail. It alleged that this prior patent was void because no bond was filed with the secretary of state and approved by the Governor and because the patent was not signed by the Governor and countersigned by the secretary of state.

The complainants' case must be tried on and by the issues which he presents and, if he alleges more that ordinarily is necessary, he thereby assumes the burden of proving all the charges. With this allegation, it was incumbent on the complainant to prove that (a) no bond was filed with the secretary of state, (b) that it was not approved by the Governor, (c) that the patent issued was not signed by the Governor, (d) that it was not countersigned by the secretary of state; or, failing in this, to prove the alternative proposition that the patent had been adjudicated by the courts of this state to be fraudulent.

On the same points, the complainant offered no testimony whatever. The record shows that it offered its own pleadings and the deeds under which it claimed, and an agreement as to the testimony of Becker, Dreq, and Jones. This agreement is found on pages 40 to 42 of the record, and not one word is said about the failure to file a bond, or the failure of the Governor to approve a bond, or his failure to sign a patent or the failure of the secretary of state to countersign the patent, nor is anything said about the fraud of the promoters of the company in procuring a patent, nor is anything said about the judgment of any court adjudicating that the patent was fraudulent.

The agreement refers to the decision of this court in Hardy v. Hartman, 65 Miss. 504, and admits that the attorney for defendants knew of this decision. But this opinion was not evidence in this case, it is the law controlling the decision of the court on the facts as presented by that particular case, and whether the defendants and their attorney would admit knowledge of it or not, they would be chargeable in law with knowledge of it because every person is presumed to know the law. So, we say there was absolutely no evidence offered by the complainant to sustain this paragraph of its bill, and had the defendants introduced no testimony with their sworn answer, denying these allegations under the pleadings and the evidence existing at the time complainants rested its case, a decree should have been given for defendants.

Mounger & Ford, for appellee.

The instant case is ruled by the decision of the supreme court of Mississippi rendered in the case of Hardy v. Hartman, reported in 65 Miss. at page 504, and for the convenient reference of the court, we set out the opinion rendered in that case, and the same is in the following words:

"It is not necessary to dispose of this case, to enter the field of observation or discussion suggested by the name of the Pearl River Navigation and Improvement Company. It is not shown by the record that the company ever made or filed the bond required by law as the foundation of its right or title to the land in controversy, nor does it appear from the record, that any patent signed by the governor and counter-signed by the secretary of state, was ever issued to the company, for the land in question, or for any land.

The Act of 1871, by which the company was...