Burroughs Land Co. v. Murphy

• Decision Date: 05 March 1923
• Docket Number: 22837
• Citation: 131 Miss. 526,95 So. 515
• Court: Mississippi Supreme Court
• Parties: BURROUGHS LAND CO. v. MURPHY

95 So. 515

131 Miss. 526

BURROUGHS LAND CO. v. MURPHY

No. 22837

Supreme Court of Mississippi

March 5, 1923

1. LEVEES AND FLOOD CONTROL. Title to lands acquired by liquidating levee board by tax sale divested out of board and vested in state.

By a tax sale made May 12, 1870, the liguidating levee board acquired title to the land in controversy, and under the act of the legislature of April 11, 1876 (Laws 1876, chapter 105), this title was divested out of the board and vested in the state.

2 TAXATION. Auditors deed not containing indorsements as to amount of state and county taxes and damages and of fee and commissions void.

An auditor's deed which was executed under the provisions of section 562 of the Code of 1880, and which does not contain the indorsements expressly required by that statute, is void.

3 EQUITY. Same strictness in framing pleas of abatement required in chancery as at common law; plea in abatement in chancery must be sworn to.

The same strictness in framing pleas in abatement is required in chancery, as at common law, and a plea in abatement in chancery must be sworn to.

4. APPEAL AND ERROR. Objections made for first time on appeal not considered, if such as could have been waived by agreement either express or implied.

Where it can be done, this court will confine its action to a review of the case as it was tried below, and will not consider objections made for the first time here, if they are such as could have been waived by agreement of the parties either express or implied, from the conduct of the trial in the court below.

5 COVENANTS. Measures of damage of vendee in possession and one not in possession for breach of warranty stated.

Where a vendee of land is in possession under the title conveyed by the vendor, and the relation of vendor and vendee still exists, the measure of damage for a breach of the warranty is the amount which the vendee has been or will be forced to expend to protect his possession and perfect his title, not in excess of the amount of the purchase price and interest but where the vendee is not in possession under the vendor's warranty of title and the relation of vendor and vendee has been severed, the vendee is under no duty to diminish the damage that would accrue from a breach of the warranty by purchasing the outstanding title, and he may recover the sum paid to the vendor for a void title.

HON. E. N. THOMAS, Chance

APPEAL from chancery court of Sunflower county, HON. E. N. THOMAS, Chancellor.

Suit by Solomon L. Murphy against the Burroughs Land Company. From a decree for plaintiff, defendant appeals. Affirmed.

Decree affirmed.

R. B. Campbell, for appellant.

(1) The title, as deraigned by appellee, both in his original bill, and in his supplemental bill, was acquired, in 1870, by what is known as the liquidating levee board, by virtue of a sale to that board for taxes; and there is no competent showing how the title passed from that board to the state of Mississippi. It is true that the bills alleged that the title passed from that board to the state by operation of law; and it is also true that appellant, in its answer, admitted that allegation; but that was simply a legal deduction--a misconception of the law--and not a statement of fact. Gibbs v. Green, 54 Miss. 592; Bunch v. Wolerstein, 62 Miss. 56; Woodruff v. State, 77 Miss. 68.

Since, therefore, appellee based his claim upon a title acquired from the state, and failed to show title in the state, his suit should have been dismissed.

(2) The title being in the liquidating levee board, there was no breach of appellant's warranty of the title, as there was no eviction of appellee from the land, or yielding of his possession thereof to a superior title. Dyer v. Britton, 53 Miss. 270; Green v. Irving, 54 Miss. 450.

His possession of the land, acquired from appellant, had never been disturbed, but he continued in possession until the final hearing of the cause, and, presumably, he is still in possession thereof. If he had paid the taxes or redeemed the tax title from the Smith heirs, in the event he had not assumed the obligation of paying the taxes, he could have sued at once for reimbursement; but, he did not pay the taxes nor redeem the land from the tax sale. In the deed of trust, which he gave to appellant to secure the unpaid purchase price of the land, he assumed to pay all taxes thereon (see record page 63) and a sale of the land for taxes was the result of his own failure, or neglect, to pay the taxes. Swinney v. Cockrell, 86 Miss. 318. Furthermore, as against appellant, the suit was premature, inasmuch as it sought relief on the warranty, only in the event that the court should decree the tax title of the Smith heirs to be valid. At the time, there had been no breach of the warranty, and a cause of action thereon had not arisen, but was only contemplated. Such a suit cannot be maintained. Brooks v. Martin, 62 Miss. 217.

(3) Admitting however, for the sake of argument, that the title had passed from the liquidating levee board to the state, and that the title from the state to N. T. Burroughs, in 1885, which was the title conveyed by appellant to appellee, was void, and that the title in consequence thereof, was in the state, at the time appellant conveyed and warranted the title to appellee, the warranty was breached, at the time it was made, which was November 26, 1913; and, as the suit was not brought until January 26, 1920, it was barred by the six-year Statute of Limitations; and, for that reason, the court erred in granting any relief to appellee, for a breach of the warranty. Green v. Irving, 54 Miss. 450; Perry v. Jones, 71 Miss. 647.

(4) The supplemental bill was based upon an entirely new title, the title acquired from the state by appellee December 18, 1920, which was nearly a year after the original bill was filed. The title, on which the original bill was based, was decreed to be void; and the court granted relief exclusively upon the case as made by the supplemental bill, which was error. Appellee could not support a bad title by acquiring another after the filing of his original bill, and bringing it forward by a supplemental bill. Daniel's Chancery Pleading & Practice (4 Ed.), 1551 & Note; Straughan v. Hallwood, 8 Am. St. R. 29; Wright v. Frank, 61 Miss. 32. Furthermore, as already stated, the title, even as shown by supplemental bill, was in the liquidating levee board, and it was not shown how the state of Mississippi acquired title; and, consequently, the conveyance from the state to appellee, December 18, 1920, did not entitle appellee to any relief.

(5) Appellee lost his title by a foreclosure of the deed of trust, which he had given to secure the unpaid portion of the purchase price, on the 27th day of November 1920, and, at the foreclosure sale, the land was conveyed to one N. A. Phipps which was nearly a year after filing his original bill; and, inasmuch as the title, upon which the original bill is based, was held to be void, and he did not acquire his new title from the state until December 18, 1920, he was out of court; and even if he were not estopped from acquiring the new title, and setting it up against appellant, while in possession of the land under appellant, I respectfully submit that he was not entitled to relief in that suit; but should have filed an original bill based upon said new title. Having failed to do so, the court erred in allowing him relief in this suit.

(6) Finally, if the foregoing reasons given for a reversal of the court's decree be unsound, then I insist that the decree rendered against the appellant is excessive. Being in the undisturbed possession of the land under appellant's warranty of the title, and having protected his title and possession by acquiring from the state her title, on December 18, 1920, and having paid therefor only fifty dollars, the measure of his relief should have been for that amount, instead of decreeing his right to recover three hundred twelve dollars and fifty cents which he had paid appellant for the land. That is too clear to admit of doubt. Kirkpatrick v. Miller, 50 Miss. 521; Allen v. Miller, 99 Miss. 75; Wade v. Barlow, 99 Miss. 33; Coopwood v. McCandless, 99 Miss. 364.

Moody & Williams, for appellee.

The only question presented by this appeal, is the liability of the appellant on its warranty, contained in the deed executed to the appellee. However, as to that, other questions are presented in the brief filed in behalf of the appellant, which it may be well for us to answer, and we shall do so, using the several headings, for each question, as they appear in that brief.

I. (1) We admit, of course, that in suits: "To cancel a cloud on title, the complainant must show perfect legal or equitable title in himself, regardless of defects in the defendant's title." However, we do not see that the appellants, disclaiming any title to said land, and only claiming that it is not liable on its warranty, has any right to present that question on this appeal. Its title was not adjudicated for it disclaimed any, and the Smith heirs, whose title was adjudicated and which was canceled, have not prosecuted an appeal.

The record clearly discloses a sale to the liquidating levee board on May 12, 1870, and no subsequent disposition of that title, either by the levee board or the state, until the patent was executed by the state to the appellee, on December 18, 1920. That such title, on those facts, did become vested in the state of Mississippi, is evident by referring to the several acts of the legislature, to which your attention shall be directed and several decisions construing those acts.

We do not claim that the legislature had the power to vest the title, acquired by the liquidating levee...