Boddie v. Pardee

• Decision Date: 18 May 1896
• Citation: 74 Miss. 13,20 So. 1
• Court: Mississippi Supreme Court
• Parties: NICHOLAS V. BODDIE v. E. H. PARDEE ET AL

20 So. 1

74 Miss. 13

NICHOLAS V. BODDIE v. E. H. PARDEE ET AL

Supreme Court of Mississippi

May 18, 1896

March 1896

FROM the chancery court of the first district of Coahoma county HON. W. R. TRIGG, Chancellor.

Nicholas V. Boddie brought this proceeding in the chancery court of Coahoma county, seeking the cancellation of certain conveyances under which the defendants claimed title, as clouds on his title, and for leave to redeem the land from certain tax sales upon which defendants' claim of title was founded. There was also a prayer for general relief. The lands sought to be redeemed were acquired by Boddie in 1873 during his minority, by deed of gift from his grandfather Malcolm McNeil. His bill was filed within one year after he came of age. He offered therein to pay to the various defendants all such sums as might be necessary to redeem the lands, when ascertained; and assailed the following tax sales as clouds upon his title: 1. A sale to the levee board for district No. 1, in January, 1874, for levee taxes due that board. 2. A sale to the liquidating levee board in May, 1874 for taxes due under the act of 1867. 3. A sale to the state for state and county taxes in June, 1874. 4. A sale to the state for state and county taxes in March, 1875. 5. A sale under the "abatement act, " in May, 1875. The opinion contains such other facts as are necessary to an understanding of the case. From a decree for the defendants complainant appealed.

Decree reversed and cause remanded.

Nugent & Mc Willie, for appellant.

1. Before considering the soundness of the chancellor's view of the effect of the act of 1888, which seems to have greatly obscured the question arising upon the objections to the copies from the tract books, and caused a confessedly meritorious application to remand the cause to rules to be denied, the admissibility and competency of these copies become proper subjects of inquiry. Why were they insufficient to show title Section 1784 of the code of 1892 is as follows "Copies from the books of entries of land kept in any land office in the state, or in the office of the secretary of state, or land commissioner, or other public office, when certified by the officer having charge thereof, shall be admissible in evidence in the same manner and with the same effect as the original certificate of entry." See, also, § 1782. If this does not include the evidence remaining on the tract book in the state land office of the issuance of patents, we greatly misinterpret its scope and meaning. Undoubtedly, as appellees urge, a patent is the evidence of title issued out of the state land office, but unless certified copies of the tract book are to have the same effect as those original muniments of title would have, there is nothing for the statute to act upon where it refers to certified copies from the book of entries in the office of the land commissioner. That officer does not, and so far as we can discover, never did, issue certificates of entry, or anything but patents as evidence of a divestiture of title out of the state. It would greatly impair the efficacy of the statute to give it so narrow an interpretation as to exclude entries in the state land office relating to the issuance of patents, which are the instruments whereby the state's title is divested, and limit it to entries in the United States land office, by which alone certificates of entry are issued. Qui hoeret in litera hoeret in cortice. When the intent of the statute is apparent, general words may be restrained and those of narrower import expanded to embrace it, to effectuate that intent. South on Stat. Con., § 218, and cases cited: But if these copies were not admissible, complainant, who relied on them as being admissible, should have been allowed time to produce the patents.

2. What effect did the act of 1888 have on complainant's right to redeem? It is contended that the act in question operated as an absolute bar of the right of redemption, notwithstanding the minority of complainant, and the further fact that the law under which the land was sold secured to him that right.

All the laws under which the lands were sold from time to time preserved to infants the right of redemption for a period after attaining majority longer than the one that elapsed prior to the institution of this suit. The sale to the No. 1 levee board in January, 1874, was governed by the act of 1871, which allowed two years after majority (Acts of 1871, p. 48). The sale to the liquidating levee board was governed by the act of 1867, which allowed the same time (Acts 1867, p. 245; Acts 1858, p. 37). The code of 1871 allowed one year (§ 1701).

Appellees rely on section 13 of the act of 1876 as a bar to appellant's proceeding to redeem, but that particular statutory provision has, in a case in all respects similar to the one at bar, been condemned by this court in no uncertain language. Dingey v. Paxton, 60 Miss. 1038.

Appellees suggest in their brief that the amendment to the act of 1867 passed in 1873 is silent as to the right of redemption. The right of redemption is there referred to as an existing right, but were this amendatory act wholly confined to other matters and entirely silent as to the right of redemption conferred by the act it amended, the provisions of the original act in that regard would remain unaffected. Acts of 1873, pp. 150 to 155.

We come now to the act of 1888. That act has never been construed as cutting off an infant's right of redemption under the law in force at the time of the sale. Indeed, the subject of redemption is not within its purview. In the case of Moody v. Hoskins, 64 Miss. 468, this court denounced as unconstitutional the act of 1876, which repealed § 1701, code of 1871, giving to infants the right of redemption within one year after coming of age, and made all lands held by the state subject to sale absolutely and without reference to such right. This case and that of Dingey v. Paxton, supra, contain the strongest expression against what is termed the effort to "transfer valuable rights from one to another by the easy process of legislative declaration, " and we cite them, relying on the reasoning there employed by the court. If it be argued that, in Moody v. Hoskins, the right of redemption was cut off eo instanti by the passage of the statute, without leaving any reasonable time for redemption, and the question there determined is therefore different from that arising on the one year limitation coupled with actual occupancy of the act of 1888, construed in Cameron v. Railway Co., 69 Miss. 78, then we have to say that, in the case last cited, no question of the right of infants to redeem was involved.

Appellees rely on the well-settled rule that no exception in favor of infants and married women will be implied, but must rest upon some express statutory saying. If the original acts under which these lands were sold had contained no exception in favor of infants, we would not pretend that any existed, but when the right has been once given by express statutory provision, we do not think any implication of its repeal arises, or that, under the policy of the law favoring a right of redemption, the act of 1888, which does not expressly mention infants, like that of 1876, or even refer to the subject of redemption, should be applied in bar of their rights.

George Winston, on the same side.

Mayes & Harris, for appellees.

If the court erred in excluding the evidence, the action was harmless to complainant, since the court expressly placed its final decision on the strength of defendant's tax titles. The title of 1874 to the No. 1 levee district was a good title to all the lands, it was conveyed by the thirteenth section of the act of 1876 to the state, and was thence conveyed, by the auditor's deeds of 1888, to defendants. Shotwell v. Railway Co., 69 Miss. 541.

If none of the other titles are good, there is still a third independent title, which applied to all the lands in controversy, and that is the title acquired by sale under the abatement act of 1875. The title so acquired by the state was derived by the defendants through the auditor's deeds of 1888. The deeds of 1888 are prima facie evidence of the making of a valid sale, and that the lands were such lands as were subject to be sold under the abatement act. Patterson v. Durfey, 68 Miss. 779; National Bank of the Republic v. Railway Co., 72 Miss. 447.

D. A. Scott, on the same side.

We rely upon the provisions of an act of the legislature, approved April 10, 1873 (Laws, p. 150); also, § 1709 of the code of 1871. In neither of these statutes is there any saving clause allowing minors to enforce their remedies after they attain their majority. Infancy is an almost universal statutory exception to statutes of limitations, but is an exception which cannot be implied. 13 Am. & Eng. Enc. L., p 740; Ib., p. 735. I insist that the act of 1888 controls this case, and is conclusive of it. In Cameron v. Railway Co., 69 Miss. 78, Chief Justice Campbell, in commenting upon section four of said act, held that the limitation therein provided was not unreasonable, and was constitutional, and not subject to adverse criticism. The only proof of the question as to occupation of the land by the appellees, was the deposition of D. G. Pepper, and he...