Creegan v. Hyman

• Decision Date: 29 June 1908
• Docket Number: 12,944
• Citation: 93 Miss. 481,46 So. 952
• Court: Mississippi Supreme Court
• Parties: CLARA V. CREEGAN ET AL. v. SAMUEL HYMAN ET AL

46 So. 952

93 Miss. 481

CLARA V. CREEGAN ET AL. v. SAMUEL HYMAN ET AL

No. 12,944

Supreme Court of Mississippi

June 29, 1908

FROM the chancery court of Sunflower county, HON. PERCY BELL Chancellor.

Hyman and another, appellees, were complainants in the court below Mrs. Creegan and others, appellants, were defendants there. From a decree in complainants' favor defendants appealed to the supreme court. The facts are fully stated in the opinion of the court.

Decree reversed and bill dismissed.

McClurg Gardner & Whittington, for appellants.

After the answer had been filed, sworn to, and the cause set down for hearing, Hyman had no right to ask, and the court no authority to grant permission to destroy the effect of the answer as evidence. Mr. Fletcher says, in his splendid work on Equity and Equity Pleading, section 648, et seq "Under a statute permitting the complainant to waive answer under oath, it has been held that he must waive an answer under oath to every part of the bill or to no part of it; and, after the defendant has put in an answer, the complainant cannot, by amendment waiving answer under oath get rid of the consequences of a denial under oath of the matters of the bill. If the bill requires an answer under oath, and after the coming in of a sworn answer, complainant dismisses his bill, such sworn answer, filed in the prior suit, will remain evidence, and the complainant can have no decree under his second bill, unless his sworn answer is overcome by other proof."

In support of this text, we also find that, in 1 Ency. of Pl. & Pr. notes on page 470, it is said "After a bill seeking a discovery has been answered, the complainant can not amend his bill so as to waive discovery, and thus get clear of the defendant's answer." Allen v. Woodson, 50 Ga. 53.

The court below erred in granting permission, at the May term, 1907, to the Sutherland-Innes Company, a Canada corporation, to be made a party complainant in this cause. It will be noticed that, after this cause had been continued at the December term, 1906, after Hyman had been permitted to amend his bill, by waiving answer under oath, appellants filed their interrogatories to Hyman, in accordance with Code 1906, § 1938, when Hyman, in his answers, disclosed the fact that he was not, as he charged in his bill "the true and legal owner of the land in controversy." His answers disclose the fact that he was only nominally interested, in this: That he was a stockholder of the Sutherland-Innes Company, a Canada corporation, and that he held the title from the Sutherland-Innes Company for the benefit of the stockholders of the corporation. In other words, that, instead of being "the true and legal owner" he was a mere trustee for the benefit of this alien corporation, which had doubtless put the title in his name to escape the penalty imposed by Code 1906, § 2768, and Code 1892, § 2439.

It was too late for the Sutherland-Innes Company to be admitted as a party complainant, and besides, to permit a nonresident, alien corporation to come into the courts of our state, as was done in this case, and invoke the aid of the courts to acquire land, in violation of the positive prohibition of law, is against public policy.

The action of the court below, in granting complainants' relief, was based on the decision of this court in the case of Means v. Haley, 86 Miss. 559, 38 So. 506. Should this court reaffirm the decision in Means v. Haley, yet appellees are not entitled to recover because the testimony in this cause shows that the various tax sales under and through which appellees deraign their title were void.

The first deed introduced was a deed from Eli Waits, tax collector, to Field, levee treasurer. Objection was made to the introduction of this deed, as the deed itself showed that it had never been filed for redemption, which the statute required should be done, and the sale therefore was void.

The next deed offered by complainants was from Eli Waits to Field, levee treasurer, when the same objection was made, except in that case, the deed also showed, in addition to the want of filing for redemption, that there was no seal by the tax collector. The fact that the deed was unsealed invalidated it. Gibbs v. McGuire, 70 Miss. 646, 12 So. 829.

The next deed was a deed from J. E. Johnson, sheriff, to the liquidating levee commissioners. Objection was made to this deed, for the reason that a proper bond had not been executed, which the statute required.

Every tax sale, both to the state and to the levee board, was shown on the trial to be absolutely void, and the act of 1888 under the decision in Dingey v. Paxton, 60 Miss. 1038, cannot be invoked in this case.

After the introduction of the deed from Gwin and Hemingway, commissioners, to Gordon, to which objection was made, among other deeds introduced, was a deed from J. T. Stewart and J. M. McKee, special commissioners of the federal court, to Thomas Watson, and objection was made to this conveyance also, because there was no proof introduced, showing authority for Stewart and McKee, commissioners, to make this deed, nor was there any proof showing a confirmation of the sale by them to Watson.

The facts in this case are somewhat different from those in Means v. Haley; and, while we do not think that it is absolutely necessary, in order to reverse the decision of the lower court and dismiss the bill, to overrule Means v. Haley; yet we think it right to be frank with the court, and say that the decision in Means v. Haley, in our opinion, should be overruled. The fact is, it occurs to us, that the decision in Means v. Haley, has been practically and in effect already overruled by two decisions of this court, rendered in the last year or two.

The first of these decisions to which we refer, which in effect overruled Means v. Haley, is Howell v. Miller, 88 Miss. 655, 42 So. 129. Judge CALHOON in rendering a decision in that case said: "The swamp and overflowed lands were never the subject of taxation and sale for non-payment. Not being subject to any taxes, any assessment and sale of them had no warrant in law and the purchaser acquired no right against the state, or the state's vendee, who bought with the warrant of the law for their special sale."

As the land in controversy is "swamp and overflowed land" and the proof shows, held by appellants under patents from the state, we contend that under this decision, not being subject to any tax before their purchase from the state by appellants, that, as the court holds "Any assessment and safe of them had no warrant in law, and the purchaser acquired no right against the state or the state's vendee. To hold in the face of this decision that appellees acquired title to the land in controversy, through the various void tax sales, under the decision in Means v. Haley, is to deprive, we think, the appellants, as the court holds in Dingey v. Paxton, of their property "without due process of law." In other words, we cannot see how the decision in Means v. Haley can stand and be invoked, as it is by appellees, in the face of the decision of this court in the case of Howell v. Miller; for the lands in controversy are of the same class, to-wit: "Swamp and overflowed lands," as those in controversy in the Howell-Miller case.

And the second case which we think practically overruled Means v. Haley is Edwards v. Butler, 89 Miss. 179, 42 So. 381. This court held in that case that inasmuch as the lands embraced in that suit, were "Chickasaw School Lands" they were never subject to taxation, that there never existed any power anywhere to sell them for taxes; and hence, all the tax titles set up in the record were absolutely null and void.

Johnson & Neill, for appellees.

The evidence sustaining appellees' bill is wholly record evidence, and it is immaterial whether the answer is under oath or not.

Samuel Hyman holds the legal title to the land involved for the benefit of himself and other stockholders in the Sutherland-Innes Company, as their interest may appear on settlement of the affairs of the Sutherland-Innes Company. It would have been rather remarkable had the chancery court, upon learning that probably some interest in the land in controversy belonged to Sutherland-Innes Company declined to entertain the bill, and dismissed the proceedings.

In the case at bar appellees derive their title from a deed from W. W. Stone, auditor. This deed was made under the provisions of the second section of the Act of 1888, Acts of 1888, chapter 23, page 40. At the time of the execution of this deed the title of this land was in the state of Mississippi. The levee board never held title to it. The sales to the levee board, and by the levee board, passed no title whatever. It was, however, claimed by the levee board under sales by Eli Waits, tax collector in 1859, and by J. E. Johnson, sheriff in 1870. It would be useless consumption of time to enter into a discussion of the different steps in the execution of these deeds to show that the law was complied with in the sale of these lands. It is immaterial for the purposes of this case whether the presumption that the officer did his duty is sufficient to warrant the conclusion that the deeds of Waits to the levee board were filed, or whether the recital in the attestation clause of the Waits levee tax deed that the instrument was executed under seal is sufficient evidence of sealing, these deeds affirmatively show that this land was claimed in good faith by the levee board, belonged to the class of lands to be sold by Gwin and Hemingway, and the class of lands to which the statute, Laws of 1888, chapter 23, page 40, applies.

"It was because of the existence of the very fact, well known to the legislature, that, as to a large...