Forsdick v. Tallahatchie County

• Decision Date: 20 February 1899
• Court: Mississippi Supreme Court
• Parties: HENRY J. FORSDICK v. TALLAHATCHIE COUNTY

24 So. 962

76 Miss. 622

HENRY J. FORSDICK v. TALLAHATCHIE COUNTY

Supreme Court of Mississippi

February 20, 1899

November 1898

FROM the chancery court of Tallahatchie county, HON. A. H LONGINO, Chancellor.

Tallahatchie county, appellant, was complainant and Forsdick, appellee defendant in the court below. The cause was tried on an agreed statement of facts, which disclosed the matters set out in the opinion of the court.

Decree reversed.

St John Waddell, for the appellant.

The lease of the lands in controversy was made under the act of February 27, 1833, as amended by the act of February 27 1836. Hutch. code, 213 and 217. The act of March 4, 1846 (Hutch. code, 230), was repealed as to Tallahatchie and several other counties by the act of 1848. Hutch. code, 243. We do not know upon what ground the chancellor decreed the lease to be canceled. We suppose it was because the defendant did not show by direct testimony a compliance with sections 1 and 2 of the act of 1833, by showing a vote of the resident heads of families, or that the lands were leased to the highest bidders at the courthouse door, between the hours of eleven and four o'clock, after six weeks' advertisement; or, second, because the lease is not signed by all of the trustees of the township, but is executed only by the president and treasurer of the board of trustees. Phillips v. Burrus, 13 Smed. & M., 31. It was unfortunately held by this court that trustees of townships in leasing school lands were exercising mere naked powers, and that a purchaser must prove a compliance with all the requirements of the statute. This construction of the law placed bona fide purchasers of the sixteenth section at a great disadvantage, for few of them had the foresight to preserve the evidence of such compliance. In Davany v. Koon, 45 Miss. 71, this court, while not overruling Phillips v. Burrus, expressed its disapprobation of the rule therein announced, and showed that the presumption of a due performance of official duty should be indulged. Whether the case of Phillips v. Burrus is in effect overruled by Davany v. Koon, is, we think, not material to inquire for the purposes of this case; for conceding, for the purpose of this argument, that Phillips v. Burrus is yet authority, we respectfully submit that on the agreed facts of this case a valid lease is shown. Section 4148 of the code of 1892 prescribes a rule of evidence under which an adverse possession of twenty-five years is prima facie evidence "that the law authorizing the disposition of the land had been complied with, and the lease or sale duly made." The court will note that in Phillips v. Burrus the sale had been made prior to the act of 1836, under which for the first time the board of trustees was required to have a clerk and keep a record of proceedings. The lease under which appellant here claims was made under the act of 1836, and under the rule of evidence prescribed by § 4148 of the code of 1892, and under the admitted facts, this case is to be tried as though the appellant had proved all of the facts leading up to and including the lease. We are not clear whether under the statute the lease should have been signed by all of the five trustees, or by the president and secretary. But whatever may have been necessary to pass the legal title on which an action at law might have been sustained or defended, it is certainly true that a complete equitable title passed to the lessee, available as a defense in a court of equity. Under § 4148 of the code adverse possession for a period of twenty-five years, under a claim of right of title, "is prima facie evidence that the law authorizing the disposition of the lands had been complied with." The possession here, not only for the period of twenty-five years, but for nearly thirty years, manifestly appears. The bill was filed in April, 1897. It avers the possession of the defendant to have been continuous since January 1, 1887.

The answer avers a possession of more than twenty-five years before the adoption of the code of 1892, and this the agreement as to the facts accepts as true. The act of 1836 Hutch. code, p. 217, required the clerk and treasurer of the board of trustees to keep a "neat and regular record of all their proceedings." In the lapse of time this record has, we presume, been lost, but, on the admitted possession of the defendant, the statute raises the presumption that all requirements of law relative to the leasing of the land had been complied with. If the lease should have been signed by all of the trustees, which we by no means concede, the original lessee, having bought the term at a regular and legal sale and paid therefor, he and his assigns are entitled to compel the execution of a perfect instrument passing the legal title. In other words, regardless of the regularity of the written lease, if it be regular, all the conceded facts show that the original lessee became owner of a complete equitable estate in the land, which is as available in defense in a court of equity as the most complete legal title would be in an action of law. Lobdell v....