BOARD OF EDUC. OF CALHOUN COUNTY v. Warner

• Decision Date: 26 June 2003
• Docket Number: No. 2002-CA-00122-SCT.,2002-CA-00122-SCT.
• Citation: 853 So.2d 1159
• Parties: BOARD OF EDUCATION OF CALHOUN COUNTY, Mississippi, v. James Sidney WARNER, Gwendolyn V. Warner, Oliver Poe, Earnestine Winter, Nancy Poe and Lisa Poe Baker.
• Court: Mississippi Supreme Court

853 So.2d 1159

BOARD OF EDUCATION OF CALHOUN COUNTY, Mississippi, v. James Sidney WARNER, Gwendolyn V. Warner, Oliver Poe, Earnestine Winter, Nancy Poe and Lisa Poe Baker.

No. 2002-CA-00122-SCT.

Supreme Court of Mississippi.

June 26, 2003.

Rehearing Denied September 25, 2003.

Robert H. Compton, Meridian, Charles Jim Beckett, Bruce, attorneys for appellant.

David L. Calder, University, Kenneth A. Rutherford, Jackson, attorneys for appellees.

Before SMITH, P.J., WALLER and COBB, JJ.

COBB, Justice, for the Court.

¶ 1. This suit involves a land title dispute between the Calhoun County Board of Education (the Board) and various members of the Poe and Warner families (collectively, Poe and Warner). The Board brought suit in the Calhoun County Chancery Court to quiet and confirm title to three tracts of Calhoun County 16th section land in October 1991.¹ Following a hearing on February 11, 1992, the original chancellor found that the parties agreed that the matters before the court "primarily involve[ ] a question of law," and that a motion for summary judgment would thus be an appropriate action. In May 1998, when Poe and Warner moved for summary judgment, the Board promptly filed a counter-motion for partial summary judgment and responded to Poe and Warner's motion. The case was transferred to a special chancellor,² who heard argument on the summary judgment motions on October 19, 1998, but no transcript of this hearing is before the Court. The chancellor found for Poe and Warner in his judgment entered on March 6, 2000, and denied the Board's M.R.C.P. 52(b) and 59 motions.

¶ 2. The Board now appeals the chancellor's award to Poe and Warner, listing thirteen assignments of error which we have distilled into three: (1) whether the lands were adversely possessed during a period when adverse possession against the State was legal; (2) whether the presumption of grant applies to the present facts; and (3) whether the Secretary of State should have been joined as a necessary party. We conclude the Secretary of State should have been joined as a necessary party, and we reverse and remand for entry of an appropriate judgment consistent with this opinion.

FACTS

¶ 3. Tract 2, claimed by the Poes, and Tract 3, claimed by the Warners, are the disputed properties in this appeal. Two underlying facts provide the foundation for the chancellor's award of fee simple title to Poe and Warner: (1) that the Calhoun County Courthouse burned down in 1922, destroying many original records; and (2) that from 1871 to 1878 the State authorized the conveyance in fee simple of 16th Section lands. See Miss.Code §§ 2015-19 (1871), repealed 1878 Miss. Laws ch. 14 § 64; Lambert v. State, 211 Miss. 129, 139-40, 51 So.2d 201, 204-05 (1951) (discussing these statutes). Poe and Warner claim, inter alia, that their title to the disputed tracts dates back to such a conveyance by the State.

A. EVIDENCE OF POE AND WARNER'S CLAIM

¶ 4. Tract 2, a plot of some 99.8 acres, is claimed by the Poe family and was conveyed in three parcels, which are identified herein as 2(a), 2(b), and 2(c). The asserted chains of title to Tract 2 are not complete, and no pre-1900 deeds to any of the parcels are found in the record, they having been supposedly consumed by the 1922 courthouse fire. Rather, the Poes rely on abstracts of title and other similar documents from the Secretary of State's office and from the Calhoun County sheriff's record of tax sales, together with an affidavit by Larry Winter, a Poe descendant. Winter's affidavit claims that "the L.F. Poe Estate and its predecessors in title have been in continuous possession of the questioned land ... since 1878," making uses of it similar to those asserted by the Warners. Winter's mother "continues to live on the property in a house originally constructed before her birth in 1917." Winter also asserts that ad valorem taxes have been paid on the land since 1878.³

¶ 5. Tract 3, totaling some 167.8 acres, was conveyed in parcels identified as parcels 3(a-e). As with the Poes' claim to Tract 2, the Warners' claim to Tract 3 is supported by abstracts of title for the late 19th-century period which is of principal interest in this case, without any title deed in the record until 1938. The Tract 3 chains of title are likewise incomplete even in abstract.

¶ 6. The Warners cite the same documents as the Poes, plus an affidavit by defendant James Sidney Warner. Warner claims that 3(a) and 3(b) have "been in private possession and conveyed in fee simple since the 1870's" and that the Warners have "been in continuous possession of 3(a) since 1890, and "in possession of" 3(b) and 3(e) since 1938. The affidavit is silent on 3(c) and 3(d).⁴ Warner states that his family had a house where they lived on the disputed land "for a considerable period of time" and that several of his siblings "were born and reared on the challenged property," although he does not state when that was or whether anyone lives there now. Warner also attests that his family has long paid ad valorem taxes to the county on the disputed land (although no tax receipts can be found in the record) and that they have made various uses of it (cutting timber, leasing oil and gas rights, farming, making "improvements").

¶ 7. The asserted chains of title are supported by Poe and Warner by way of photocopies of various documents, characterized in their motion for summary judgment as follows:

Exhibit K "a compilation of conveyances from the records of the Chancery Court of Calhoun County, which was prepared by the clerk's office in 1992."

Exhibit L "documents evidencing tax sales from the Office of the State Auditor."

Exhibit M "documents obtained from the Mississippi Secretary of State."

Exhibit N "documents obtained from the archives of the State of Mississippi."

None of these photocopies is notarized or accompanied by any affidavit attesting to its authenticity or origin, except for those in Exhibit M, which are certified by the Secretary of State's office.

¶ 8. The final evidence presented by Poe and Warner is the affidavit of Larry Winter, an heir to the Poe estate. Winter's affidavit claims that "the L.F. Poe Estate and its predecessors in title have been in continuous possession of the questioned land ... since 1878," making uses of it similar to those asserted by Warner. Winter's mother "continues to live on the property in a house originally constructed before her birth in 1917." Winter also asserts that ad valorem taxes have been paid on the land since 1878.

B. EVIDENCE OF THE BOARD'S CLAIM

¶ 9. The Board's evidence includes affidavits by Ottis B. Crocker, Jr., an attorney hired by the Board to research the title to the disputed tracts. Crocker found no title to 2(c) earlier than the 1919 deed from Armstrong to Shipp, and no title to 2(a-b) earlier than the 1924 conveyance from J.F. Poe to L.F. Poe. As for Tract 3, Crocker found that title to 3(a) was conveyed from Beadles to Stewart Warner on February 27, 1890, and that all of Tract 3 was conveyed by forfeited tax land patent from the State to A.V. Warner in 1938.

¶ 10. The Board also presented three other affidavits. Rebecca Prewitt, 16th Section Land Administrator for the Board, attested that no one other than the Poes and Warners claimed any ownership interest in any 16th Section lands in Calhoun County south of the Chickasaw-Choctaw treaty line. William R. Presson, an attorney, attested that he had carefully examined the Legislature's session laws from 1833 to 1869 and found no indication that the Legislature had ever authorized Calhoun County or Yalobusha County (which contributed land to the new Calhoun County when it was formed in 1852) to sell any 16th Section lands in fee simple. Nor was there any general statute permitting the sale of 16th Section lands. And Dewitt Spencer, the superintendent of the Calhoun County schools and the custodian of school records, attested that his records showed no divestiture of title to the disputed lands. In his memorandum opinion, the chancellor did not consider the tracts and parcels individually, but rather premised his findings on the proposition that

the documentary evidence reveals that the defendants and their predecessors have paid taxes on and have been in open, hostile and continuous possession of Tract two since the 1870's. The Warner defendants has [sic] been associated with Tract three in a similar fashion. Under these circumstances, ... the Court must presume there was a grant.

The chancellor summarily rejected the Board's arguments.

¶ 11. A final judgment was entered March 6, 2000, and the Board moved to challenge that judgment, questioning the sufficiency of the evidence (M.R.C.P.52(b)), seeking to amend the judgment (M.R.C.P.59), and asking for a stay of proceedings to enforce the judgment (M.R.C.P.62). On December 20, 2001, the chancellor denied the requested relief in an opinion that set forth the court's reasoning at greater length. With regard to the issue of insufficient evidence, the chancellor ruled that the Board had waived any issue on this point when it stipulated that "the subject civil action primarily involves a question of law, and that the contested issues between the parties would be appropriate for resolution through Summary Judgment." The chancellor further found that, alternatively, "Warner and Poe presented ample probative and unrebuked evidence for this Court to quiet title in their favor by way of summary judgment."

STANDARD OF REVIEW

¶ 12. Poe and Warner vigorously argue that the standard of review in this case requires deference to the chancellor's findings of fact. However, this Court has clearly held that it "reviews errors of law, which include summary judgments and motions to dismiss, de novo." City of Jackson v. Perry, 764 So.2d 373, 376 (Miss. 2000). See also Miss. Dep't of Wildlife, Fisheries & Parks v. Miss. Wildlife Enforcement Officers' Ass'n, Inc., 740 So.2d 925, 929-30 (Miss.1999) (...