Carroll County v. Estes

• Decision Date: 21 January 1895
• Citation: 72 Miss. 171,16 So. 908
• Court: Mississippi Supreme Court
• Parties: CARROLL COUNTY v. G. S. ESTES

16 So. 908

72 Miss. 171

CARROLL COUNTY v. G. S. ESTES

Supreme Court of Mississippi

January 21, 1895

FROM the chancery court of the first district of Carroll county. HON. T. B. GRAHAM, Chancellor.

Bill against appellee, under § 4147, code 1892, to cancel the claim of defendant to certain school land alleged to have been reserved in lieu of sixteenth section land. The prayer is that if defendant's claim is not canceled, the court shall fix the date of expiration of the lease. Defendant answered, and, as to that part of the land which is in controversy, averred that she and those under whom she claimed had been in possession, under claim of title, for more than twenty-five years; that the land had been duly leased, but that no lease could be found on record; that the deed, under which she claimed, was made by one Grider, in 1857, and recited therein that the land had been duly leased September 6, 1848, and that she was entitled to the unexpired term. The court decreed that defendant was entitled to relief, and fixed the term as beginning on the date mentioned. Complainant appeals. The opinion contains a further statement of the case.

Decree affirmed.

Southworth & Stevens, for appellant.

The meaning of § 4148, code 1892, is this: 1. Defendant must claim under an apparently valid lease. 2. Then the presumption will be indulged that all the necessary prerequisites were complied with in making such lease namely, that an election of trustees was had; that a majority of the heads of families petitioned for a sale or lease; that an advertisement was duly made and a sale had at the proper time and place. The statute was never intended to aid a mere trespasser without color of authority, but only applies where a lease apparently valid is produced. The opposite construction would open the door to fraud and perjury and enable one merely claiming the land to obtain title.

We submit that the defendant totally failed to make out a case entitling her to the presumption afforded by the statute. There is no evidence showing that a dollar was ever paid for this land, and the proof of such payment is necessary, Jones v. Madison Co., post. The decree is unauthorized, and should be reversed.

Somerville & McClurg, for appellee.

There is color of title under lease from the proper authorities though no lease was produced. The reason of the old rule that the lessee should preserve evidence of his lease, does not apply. Davany v. Koon, 45 Miss. 71.

In Lauderdale Co. v. East Mississippi Mills, recently decided by this court, and in Brown v. Supervisors, 54 Miss 230, it appeared affirmatively that the law governing the disposition of the land had not been complied with. Here the deeds in appellee's chain of title recite that the land was leased as school land, and it has been held and claimed as such since 1848. This is certainly sufficient to make a prima facie case under the statute.

The right of the state to manage these township lands and funds is not now an open question. Simmons v. Holmes, 49 Miss. 134.

OPINION

COOPER, C. J.

By agreement of counsel in open court, all...