Dimitry v. Jones

• Decision Date: 05 March 1928
• Docket Number: 26665
• Citation: 115 So. 786,149 Miss. 641
• Court: Mississippi Supreme Court
• Parties: DIMITRY et al. v. JONES et al. [*]

115 So. 786

149 Miss. 641

DIMITRY et al. v. JONES et al. ^[*]

No. 26665

Supreme Court of Mississippi

March 5, 1928

Division B

Suggestion of Error Overruled May 7, 1928.

1. CONSTITUTIONAL LAW. Taxation. State may adopt any method of assessing land for taxes so that reasonable notice and due process of law are afforded; statute providing for assessing land by government surveys or plan as shown in maps and other descriptions sufficiently complies with due process government survey of Spanish land grant in regular townships sections, and ranges, noting them on map, authorizes state's use of such designations in assessment (Hemingway's Code 1917, section 6917).

The state in assessing property for taxation can adopt any method for making its land assessment that complies with the requirement of reasonable notice and due process of law. Section 6917, Hemingway's Code 1917, providing that land shall be assessed according to government surveys where such exist, and lands not surveyed according to township, range and section, shall be assessed according to the plan of the government as shown in the government maps and other descriptions by which the land may be distinguished, sufficiently complies with due process. A government survey of a Spanish land grant laying the same off into regular townships, sections, and ranges, noting them on the map, authorizes the state to use such designations in assessing lands.

2. ADVERSE POSSESSION. Taxation. Tax title based on assessment by government survey, otherwise valid, held to prevail over Spanish land grant claim; land held in private ownership is subject to state statutes on assessment; land held in private ownership is subject to state statutes on adverse possession (Hemingway's Code 1917, section 6917.)

In a contest between the owner of Spanish land grant and the purchaser at a tax sale where the lands were assessed as indicated and as in the preceding syllabus, the tax title, if otherwise valid, will prevail over the Spanish land grant claim. Property held in private ownership is subject to the state statutes on assessment and on adverse possession.

APPEAL from chancery court of Harrison county. HON. V. A. GRIFFITH, Chancellor.

Suit by Theodore J. Dimitry and others against J. L. Jones and others. From a decree of dismissal, complainants appeal. Affirmed.

Judgment affirmed.

J. F. Galloway, for appellants.

Complainants seek by the proceedings here to have quieted and confirmed their title to a tract of land which is a part of the private grant or confirmation of Alexander Dimitry, more particularly described in the bill of complaint. Defendants did not deny in their answer, that the complainants had been divested of their title, except by virtue of a tax deed executed by William Reeves, sheriff and tax collector of Harrison county, Mississippi, in July, 1911, for the delinquent taxes of the year 1910. There was a proceeding by the defendant, J. L. Jones, to have said title by tax sale quieted and confirmed in the chancery court of Harrison county.

It is the contention of complainants that the description by section numbers did not apply to any land within said grant; and that the legal notices involved in said tax sale and proceedings in confirmation were not notice to the Dimitrys of any hostile assertions of title. That the official plat of said township in force and effect, at the date of said tax sale, showed that section 33 was fractional, that the northwest quarter was fractional, containing sixty and six hundredths acres, and that the northeast quarter was fractional, containing three and thirty hundredths acres; that the said land was patented by the state of Mississippi as containing sixty-three and thirty-six hundredths acres, and all of said fractional section; that the tract book of original entries and all of the proceedings by the United States surveyor general's office showed that said section 33 was fractional, as aforesaid, and was never intended to apply to or include any land within said private claim.

On the other hand it is the contention of the defendants that the description contained in said tax deeds and proceedings in confirmation in the chancery court were legally sufficient to identify the land, and did sufficiently identify the same, to be translative of a good and sufficient title to the purchaser at said sale, and to divest all claims of complainants.

Complainants contend that this case comes within the rule announced so often by this court in the following cases: Surget v. Little, 24 Miss. 118; Trager v. Jenkins, 75 Miss. 676; Dedeaux v. Bayou, Delisle Lumber Company, 112 Miss. 325, 73 So. 53; Goff v. Avent, 122 Miss. 86, 84 So. 134, also 129 Miss. 782, 93 So. 193; Galloway v. Inglis, 103 So. 147; Lott v. Rouse, 144 Miss. 802, 111 So. 838; Weston Lumber Company v. Strahan, 128 Miss. 54, 90 So. 452, to the effect that regular sectional numbers did not describe or include any land within private claims.

Defendant attempts to distinguish the present case on the facts from those above referred to, upon the point that there appear certain dotted lines within the area of the private claim, which they contend mean regular sections.

Facts from the record:

The Dimitry claim, which was confirmed by the Act of Congress of March 2, 1837, was based upon a favorable report therefor of the register and receiver of the United States Land Office at St. Stephens, acting as commissioners under an applicable federal statute, dated February 16, 1834. This confirmation by congress was without directions for issuance of formal patent. The said commissioner's report shows that said claim was composed of three ancient Spanish grants, briefly described as follows:

1. A grant to Micheal Dragon, consisting of five thousand and forty arpents by Governor Morales, dated May 29, 1802, situated upon the Bay of St. Louis, in the possession of the said Dragon from 1798 to 1821, the date of his death, according to a survey of land and official plat thereof made and approved by Don Carlos Trudeau, surveyor general and particular of the Provinces of Louisiana and West Florida, dated April 15, 1602, recorded in Book C., No. 2, folio 62, page 1524 of the records of plats in the surveyor general's office. The certificate of survey recited:

"Charles Trudeau, royal and particular surveyor of the Province of Louisiana, etc., I do hereby certify that I have bounded and put limits in favor and in the presence of Micheal Dragon, and with the assistance of the Senor Philip Saucier and the adjoining neighbors, a tract of land of one hundred twenty-six arpent front to the Bayou Lobos, with the ordinary depth of forty arpents."

The formal grant or patent of said land in favor of Dragon was signed by John Ventura Morales, Accomptant General of the Army, Intendant pro tem of the royal finances of these Provinces of Louisiana and West Florida, superintendent, subdelegate, Judge of the Vessels that put in, lands and tools belonging to the King, and was recorded in "The Book of Concessions" or grants in the archives and notarial records of said provinces, "from folio 41 to folio 43 of the book that serves for this purpose."

2. A Spanish grant in favor of Fancisco Saucier, dated November 17, 1789, to a tract of land adjoining the Micheal Dragon tract, consisting of seven hundred arpents, in the possession of the said Saucier and Micheal Dragon from 1798 to 1821. Recorded in the land records of the Province of Louisiana and West Florida in Book 8, page 18: this tract of land was also duly surveyed, mapped and certified by the surveyor general's office, and the plat thereof approved and filed in the records and plats of said officer.

3. A Spanish grant in favor of Philip Saucier, dated December 20, 1797, adjoining the other two tracts just above described, consisting of two hundred twenty-eight arpents, in the possession of the Saucier and Micheal Dragon from 1798 to 1821. This grant was also duly surveyed.

In conformity with the federal law, which required the claimants to land within the Provinces of Louisiana and West Florida, to present their evidence of title to commissioners for examination and report for confirmation, Micheal Dragon caused certified copies of these grants, maps and proceedings to be made, and during the month of June, 1820, sent them by Demetry Canna of Bay St. Louis, his agent, who presented them, translated in English, to W. Barton, commissioner, at Jackson, Mississippi. These certified translations were refused by Barton, because he said the originals would be better evidence. But, that during the month of September, "The said Demetry Canna presented to me at Bay St. Louis the three original grants, of which copies in English are hereto annexed, marked A, B, and C." The said Barton further found them to be formal grants, all executed anterior to the session, and were complete grants without condition. These grants and maps seem to have been forwarded by the register and receiver of the General Land Office of Jackson, Mississippi, to the commissioner of the General Land Office, who in turn transmitted them to Congress.

The treaty of the Cession of Louisiana, including West Florida, was ratified on October 21, 1803, and provided by Article 11, "All public lots and squares, vacant lands and all public buildings, fortifications, barracks and other edifices which are not private property," should be ceded.

And further: "The archives, papers and documents relative to the domain and sovereignty of Louisiana and its dependencies will be left in the possession of the commissaries of the United States, and copies will be afterwards given in due form to the magistrates and municipal officers of such of the said papers and documents as may be necessary to...