Carlton v. Rowan
| Decision Date | 03 February 1913 |
| Docket Number | 14,948 |
| Citation | 103 Miss. 722,60 So. 735 |
| Court | Mississippi Supreme Court |
| Parties | NINA W. CARLTON, et al., v. E. A. ROWAN |
APPEAL from the chancery court of Quitman county, HON. M. E. DENTON Chancellor.
Suit by E. A. Rowan against Nina W. Carlton and others. From a decree for complainant awarding him a part of the land, both parties appealed.
The facts are sufficiently stated in the opinion of the court.
Reversed, and bill dismissed.
J. W Cutrer, for appellant.
It is contended on behalf of the appellant, that the action of the court below in holding that the deed to the appellee executed by Gwin and Hemingway, commissioners, was not such a deed as was required to be recorded, was erroneous. The holding of the court upon that point as is seen by the contention of the appellant in brief on file, was and is based upon the decision of this court in the case of Patterson v Langston, 69 Miss. 400.
It is submitted that the authority mentioned has no application to the action of commissioners of the chancery court, nor to deeds executed by commissioners of the chancery court. The statute upon that subject required that all conveyances in order to be operative against subsequent purchasers, must be acknowledged and lodged with the clerk of the chancery court of the county in which the lands are situated to be there recorded, and that all such conveyances shall in default of record be void as against subsequent purchasers. The statute is presumed to mean what it says.
The affairs of the old levee board had been taken out of the hands of any of the levee officers or state officers, and by decree of the chancery court of the first district of Hinds county, placed in the hands of receivers or commissioners of said court. The commissioners alone were authorized to make conveyances, and conveyances executed by such commissioners are to be governed by the law at the time of the execution of the deeds by them. That law was section 1209 of the Code of 1880. It must be presumed that the legislature meant what it said when it enacted the statute, and that unless the dispatch of the public business should require the engrafting upon it of particular exception, no exceptions whatsoever can be ingrafted upon it by the courts. Counsel representing the appellee very frankly admits that there is no authority for the position assumed, and asserted by the court, except it can be taken to be true that the situation surrounding the grantors in the deed mentioned executed by them to the appellee, was and is such as to require the court to engraft an exception upon the statute by the very exigencies of the case. No such reason can be thought of, no exigency can be conceived which would require the court to make an exception in favor of the appellee. The reasoning and cause for the reasoning in the case of Patterson v. Langston, cannot be held to apply in the present case.
The facts are entirely dissimilar. If the court shall so hold this point will make an end of the case in favor of appellee, and the cause should be determined finally by decree against the appellee and in favor of the appellant.
P. H. Lowrey, for appellee.
The answers of the defendants admitted title out of the government and the state and set up claims to the land by title derived through the M. & V. R. R. Co., under sale by Gwin and Hemmingway, in the case of Joshua Green v. Gwin and Hemmingway, Miss. , 51-53. The complainant claimed title directly from the same source by a deed executed by the same parties to him in August, 1881, prior to the conveyance to the railroad company. It was shown in the pleadings, and admitted, that the deed executed by Gwin and Hemmingway to E. A. Rowan was prior in date to the deed executed to the railroad company, but that it was not filed for record in Quitman county until after the purchase by the railroad company. This presents, in the very inception, the question as to whether or not this deed was subject to the recording acts. Gwin and Hemingway were state officers and were ex officio to liquidating levee commissioners and were acting only pro hac vice as commissioners of the chancery court in the famous case of Joshua Green. This point was raised on the demurrer and was decided in favor of the complainant in the overruling of the demurrer. This court has held in Patterson v. Langston, 69 Miss. 400, that an auditor's deed is not subject to the recording acts and the same rule, for the same reasons would apply to the deed from the treasurer and auditor as ex officio levee commissioners, even though they were pro hac vice commissioners of the chancery court.
In addition to the deed from the levee commissioners, the complainant held and offered in evidence a deed from the state, dated May 23, 1898, and executed under an act of 1894, amended in 1896, to quiet titles to lands in the Yazoo-Delta, etc. Acts of 1896, p. 183; Acts of 1894, p. 76. The complainant's deed being shown at page 38 of the record. The defendants also claimed under deeds, which were exhibited in evidence, from the state to the railroad company, under the quieting acts of 1884 and 1888. The consolidation of the M. & V. and L. N. O. & T. with the Y. & M. V. R. R. Co. is admitted by the complainant and is shown by the record.
The complainant introduced in evidence deeds showing sales of these lands for liquidating levee taxes in 1872. The defendants offered in evidence certified parts of the list of lands sold to the state in 1872 for delinquent state and county taxes embracing the northeast quarter of the southwest quarter claimed by Mrs. Goshorn, but not covering that part of the lands claimed by Mrs. Carleton. They also offered in evidence certified lists of lands sold to the state for taxes in 1870 for delinquent state and county taxes, embracing the northeast quarter of the northeast quarter claimed by Mrs. Carleton.
The court held that the list of lands sold in 1870 was insufficient, as the law at that time required a deed, and the sale could not be proven in this way. The court also held that the sale of lands sold in 1872 could be established by the list, no deed then being required. The Code of 1871, having been adopted between the sale in 1870 and the sale in 1872, provided for passing of title to state in tax sales by the filing of the certified list.
This explains the finding of the court that the complainant acquired, under his conveyance, title to the northeast quarter of the northeast quarter but acquired no title to the northeast quarter of the southwest quarter. The defendants contended that although the complainants' deed from the levee commissioners was prior to that of the defendants, yet, that the title to the lands being in the state under the sales of 1870 and 1872, prior to the sale of this land to the levee board in May, 1872, that the complainant acquired no title through the levee commissioners and that they acquired the title through the sales under the acts of 1884 and 1888. On this question of law the courts seems to have agreed with the contention of the defendants.
The contention of the complainant was and is that whatever title was in the levee board was acquired by him under...
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