Dees v. Kingman

• Decision Date: 03 February 1919
• Docket Number: 20509
• Citation: 80 So. 528,119 Miss. 199
• Court: Mississippi Supreme Court
• Parties: DEES v. KINGMAN

80 So. 528

119 Miss. 199

DEES v. KINGMAN

No. 20509

Supreme Court of Mississippi

February 3, 1919

Division B

1 TAXATION. Land subject to taxation. State land.

Lands conveyed to the state, under Act of Congress, approved September 28, 1850 (9 Stat. 519, c. 84), as swamp and overflow land, became the property of the state and as such were not subject to taxation.

2. ADVERSE POSSESSION. Doctrine of lost grant. Applicability.

The doctrine of lost grant cannot be invoked where the defendant does not plead a grant from the state to any particular individual and does not show that prior to the tax sales relied upon by him, any individual was in possession claiming title from the state, or that the land was ever the subject of private ownership, and therefore subject to taxation until conveyed to plaintiff's predecessor.

3 TAXATION. Tax title. Invalidity. Refund.

Where after lands had become subject to taxation, the defendant claiming under an invalid title paid the taxes, on the lands in dispute he should be reimbursed for such payments.

HON. E N. THOMAS, Chancellor.

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

Suit by A. Dees against Mrs. Carrie Kingman in which defendant made her answer a cross-bill. From a decree for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Decree reversed and remanded.

George Butler and J. H. Price, for appellant.

Chapman & Johnson, for appellee.

OPINION

STEVENS, J.

Appellant sued in equity to confirm his title to the east half of the northeast quarter of section 20, township 18 north, range 3 west, in Sunflower county, and to cancel appellee's claim or alleged title. Appellant deraigned title as follows: United States to the state of Mississippi under the act of Congress approved September 28, 1850 (9 Stat. 519, chapter 84), conveying the swamp and overflowed lands; by patent from the state of Mississippi to Mrs. May Price, April 27, 1914; by deed from Mrs. Price to complainant on May 23, 1917. The defendant answered, and made her answer a cross-bill. She admitted that the land was donated swamp and overflowed lands under the act of Congress mentioned, but denied that the state patented the land to Mrs. May Price, and denied that defendant had any title. In her cross-bill she deraigned title and offered instruments in support of her claim as follows: Deed from J. E. Johnson, sheriff, to the board of liquidating levee commissioners, May 11, 1870; deed from S. Gwin, auditor, and William L. Hemingway, treasurer, ex officio liquidating levee commissioners, and commissioners of the chancery court of Hinds county, to Eugene C. Gordon, October 3, 1881; deed from Eugene C. Gordon to Byron H. Evers, November 25, 1881; tax collector's deed from S. L. Richardson, sheriff and tax collector, to the state, March 6, 1883; tax sale by C. H. McLeod, sheriff and tax collector, to the state, March 1, 1886; deed from Byron H. Evers and others to Delta & Pine Land Company, November 13, 1886; deed from W. W. Stone, auditor, to the Delta & Pine Land Company, July 6, 1888, and from the Delta & Pine Land Company, by mesne conveyances, to the defendant and cross-complainant. Cross-complainant plead and relied upon various statutes of limitation, and claimed title by ten years' adverse possession.

Upon the trial of the case certain testimony was taken in reference to adverse possession. It appears that the United States government did not issue its patent to the state until August 15, 1895. There was a final decree in favor of the defendant and cross-complainant, dismissing the complainant's original bill and confirming the title of appellee. From this decree an appeal is prosecuted.

While there are various assignments of error, the point mainly relied upon is the contention that the lands involved in this suit belonged to the state of Mississippi until the patent was issued to Mrs. May Price in 1914, that, while owned by the state, they were swamp and overflowed lands and never subject to taxation, and the various tax sales relied upon by appellee were and are void, and that no title by adverse possession is shown: First, because the evidence is insufficient; and, secondly, because this statute of limitations did not run against the state.

It is conceded that the land here the subject of litigation passed to the state of Mississippi under the act of 1850, and thereby became the property of the state. As state lands they were not subject to taxation, and there is no adequate showing that the state ever parted with title until 1914, when a patent was issued to Mrs. May Price. There is positive testimony from the deputy land commissioner that the records of the land office show no patent by the state prior to the patent under which appellant claims.

Appellee invokes the doctrine of a lost grant, citing the general law on this subject, and Caruth v. Gillespie et al., 109 Miss. 679, 68 So. 927. Appellee did not plead a...