Dresser v. Hathorn

• Decision Date: 15 June 1926
• Docket Number: 25388
• Citation: 144 Miss. 24,109 So. 23
• Court: Mississippi Supreme Court
• Parties: DRESSER v. HATHORN et al. [*]

109 So. 23

144 Miss. 24

DRESSER v. HATHORN et al. ^[*]

No. 25388

Supreme Court of Mississippi

June 15, 1926

Division A

1 STATUTES.

Ambiguous section of statute must he construed in connection with whole statute of which it is a part, and resort may be had to purpose and intention of legislature in adopting it.

2. PUBLIC LANDS. Law authorizing granting patents on payment of certain sums and legalizing acts held not to vest title to lands, in absence of showing payments (Laws 1873, chapter 114; Act April 8, 1871 [Laws 1871, chapter 169]; Act Gong. Sept. 28, 1850 [U. S. Comp. St., sections 4958-4960]).

Under provisions of Laws 1873, chapter 114, construed together title to lands patented by state of Mississippi to the Pearl River Improvement & Navigation Company by Act approved April 8, 1871 (Laws 1871, chapter 169), after donation by Act Cong Sept. 28, 1850 (U. S. Comp. St. sections 4958-4960), did not vest in company or any of its vendees, in absence of showing that payments stipulated for in statute were ever made, since purpose of act was to invalidate patents and revest title to lands in state, unless provisions and conditions of act were strictly complied with.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Pearl River county, HON. T. P. DALE, Chancellor.

Bill by Louisa E. Dresser against F. C. Hathorn and others seeking to quiet and confirm title to certain lands and for a temporary injunction. From a decree dissolving the injunction, plaintiff appeals. Affirmed, and cause remanded.

Decree affirmed, and cause remanded.

H. C. Holden and E. O. Sykes, for appellant.

I. The complainant, appellant, purchased this land from the Edward Hines Yellow Pine Trustees two years before the trustees instituted the four suits in the Federal court about the title to said lands. These suits were instituted and prosecuted without her knowledge or consent. For these reasons she was neither a party to the suits nor a privy thereto and, therefore, the decrees of the Federal court in those cases are not res adjudicata as to her. Creegan v. Hyman, 93 Miss. 481; Nelson v. Ratliff, 72 Miss. 667; Shotwell et al. v. Lawson et al., 30 Miss. 27; Trust Co. v. Hardwood Co., 74 Miss. 584; Lipscomb v. Postell, 38 Miss. 489.

II. Since the complainant, appellant, had neither notice nor knowledge of the Federal court suits, and was neither a privy nor party to them, she is not estopped by the final decrees of the Federal court. 27 R. C. L., p. 676, sec. 439; 10 R. C. L., p. 693, sec. 21; Staton v. Bryant, 55 Miss. 261; Madden v. Railway Co., 66 Miss. 258; Barrier v. Kelly, 82 Miss. 233; Brantley v. Wolfe, 60 Miss. 420; Thomas v. Romano, 82 Miss. 256; Lumber Co. v. Clark, 95 Miss. 244; Davis v. Bowman, 55 Miss. 671; 23 R. C. L. 24, p. 170; Mortgage Co. v. Bunckley, 88 Miss. 641; Hart v. Foundry Co., 72 Miss. 809; Chapter 46, Hemingway's Code, section 2498 et seq. (Section 3147 et seq., Code of 1906); Bacon v. Gardner, 23 Miss. 60; Allen v. Poole, 54 Miss. 324; McCutchen v. Miller, 31 Miss. 83; Nelson v. Ratliff, 72 Miss. 667; Alliance Trust Co. v. Hardwood Co., 74 Miss. 584.

III. The complainant, appellant, had done nothing either actively or refrained from performing any duty owed by her to the defendants, appellees. She only failed to record her deed promptly. She has, therefore committed no acts which constitute an estoppel in pais. See authorities under subhead II; 23 R. C. L., sec. 24, p. 170; Sections 2288, 2292, Hemingway's Code (Sections 2784, 2788, Code of 1906); Dixon v. Lacost, 1 S. & M. 70; Valley Co. v. Railway Co., 58 Miss. 846; Chuffee v. Holpin, 62 Miss. 1; Reddock v. Williams, 129 Miss. 733; Henderson v. Downing, 24 Miss. 106; Edmondson v. Meacham, 50 Miss. 34; Carlisle v. Tindale, 49 Miss. 229; Bernheim v. Beer, 56 Miss. 149; 12 R. C. L., p. 465, sec. 2; Johnson v. Bank Co., 85 Miss. 234; Day v. Goodbar, 69 Miss. 687; Klein v. Richardson, 64 Miss. 41.

IV. The supreme court of Mississippi neither expressly nor impliedly passed upon the Act of 1873 and especially section 6 thereof, invoked by appellant, in the cases of Becker v. Columbia Bank, 112 Miss. 819; Hardy v. Hartman, 65 Miss. 504; Hines & Co. v. Martin, 99 So. 825.

V. No rule of property was established by the decisions of the supreme court in the above cited cases which govern the title to the land involved in this controversy. R. R. Co. v. Adams, 81 Miss. 115.

VI. Complainant, appellant, had no knowledge of the pending litigation in the Federal courts and cannot be charged with notice thereof under this record. 6 C. J., p. 638, section 144; 2 R. C. L., pp. 962, 965, sections 38, 39, 40.

VII. Since neither the appellees nor their immediate predecessors in title purchased these lands from the Edward Hines Yellow Pine Trustees, the grantor of the complainant, appellant, then these defendants are not innocent purchasers for value without notice. Reddock v. Williams, 129 Miss. 733; authorities cited under subhead III.

VIII. The deed from the Edward Hines Yellow Pine Trustees to complainant, appellant, is a valid legal conveyance. The consideration therefor cannot be questioned by the defendants, appellees. 22 C. J., p. 144; 17 Cyc., p. 817; Burnet v. Smith, 93 Miss. 572; Hilzheim v. Drane, 10 S. & M. 556; Wilkins v. Riley, 47 Miss. 306; Brown v. Freeland, 34 Miss. 181; Wilkie v. Collins, 48 Miss. 496; Clay v. Allen, 63 Miss. 426; Cherry v. Latimer, 103 Miss. 524; and Banks v. Banks, 118 Miss. 738.

IX. These lands were selected by the proper state officials as swamp and overflowed land lying on Pearl River. This judicial determination of these officials conclusively established in this case that these lands are of that character. Hines v. Brown & Co., 133 Miss. 334.

X. Chapter 114, Laws of 1873, and especially section 6 thereof, validated, legalized and confirmed the title to this land then held by M. S. Baldwin, and to his successors in title, which title is now held by this complainant, appellant. For which reason the appellant is the owner of these lands. McLaurin Act of 1905 discussed in Shoub v. Perkins, 111 Miss. 78; Hines v. Brown & Co., 133 Miss. 334; Paxton v. Valley Co., 67 Miss. 96; Shotwell v. Railway Co., 69 Miss. 541; Abatement Acts; Validating Acts; Gamble v. Witty, 55 Miss. 26.

Rawls & Hathorn and J. C. Shivers, for appellees.

I. and II. We will first discuss the first and second finding of the chancellor. We are discussing the two findings together for the reason that they are both estoppel, the one being an estoppel by judgment and the other an estoppel because of the acts of omission or commission of the parties, or their agents or privies. In support of the chancellor's finding of estoppel both by judgment and in pais in this case we cite: 15 R. C. L., p. 1009, par. 483; 34 C. J. p. 938, par. 1343; Heinroth v. Griffin, 242 Ill. 610, 90 N.E. 199; Hall v. Sauntry, 71 A. S. R. at 497.

Measured by the rule there stated appellant would certainly be estopped for it was certainly gross negligence--to place the most charitable construction on the whole matter--of her agent and attorney, Mr. Bennett, in not recording her deed that made it possible for the legal fraud, which the trustees and their attorneys perpetrated on appellees predecessors in title, by claiming title to the lands and litigating with them, to be perpetrated; and to hold otherwise would bring undeserved hardships on appellees and their immediate vendors. See 10 R. C. L., p. 692, par. 21; 10 R. C. L., p. 695, par. 23; 21 C. J., p. 1060, par 8; Conn. Mut. Life, etc., v. Talbot, 3 A. S. R. 655; Marling v. Nommensen, 115 A. S. R. 1017.

The chancellor's first and second findings are manifestly right and appellant is estopped both by judgment against the trustees, her vendors, and by her own acts both of omission and commission.

III. The third finding of the court holds that the supreme court necessarily considered chapter 114, Laws of 1873, and section 6 thereof, in Becker v. Columbia Bank, 42 Miss. 825, and that the court necessarily held that chapter 114, Acts of 1873, did not ratify or confirm or legalize the deed of conveyance from Pearl River Navigation and Improvement Company to Baldwin.

Our information is that the records in both the supreme court and in the circuit court of Lincoln county have been lost in the Hardy v. Hartman case, 65 Miss. 504, and it is, therefore, impossible to get a description of the lands involved in that case so as to trace its history and we, therefore, do not know whether the lands involved in that case were lands which had not been sold by the Pearl River Improvement and Navigation Company prior to the Act of 1873.

Appellant is certainly claiming title through a patent issued to the Pearl River Navigation and Improvement Company. She tries to evade this in a way by saying that her title from the state comes from section 6 of the Act of 1873, but certainly if this section means and was intended to mean what appellant contends, it would necessarily have to be held to validate all patents issued to the Improvement Company, where the land had prior to the passage of the act been deeded (?) by the Improvement Company to individuals. But in announcing the rule of property in Hardy v. Hartman, the court says in Hines v. Brown, supra, that the rule applies to all lands patented to the Improvement Company. We submit that the appellant cannot rely upon the Act of 1873 as a ratification of her title in this case.

The Edward Hines Yellow Pine Trustees, the grantors of appellant litigated the title to this land with the predecessors in title of the appellees in the United States court, 268 U.S. 459, 69 L.Ed. 1050. In that litigation the Edward Hines Yellow Pine Trustees did not plead or suggest the Act of 1873 as a source of title in the...