Foster v. Jefferson County

• Decision Date: 22 September 1947
• Docket Number: 36492.
• Citation: Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126 (Miss. 1947)
• Court: Mississippi Supreme Court
• Parties: FOSTER et al. v. JEFFERSON COUNTY.

32 So.2d 126

202 Miss. 629

FOSTER et al. v. JEFFERSON COUNTY.

No. 36492.

Supreme Court of Mississippi

September 22, 1947

Suggestion of Error Overruled Nov. 10, 1947.

See 32 So.2d 568.

Satterfield, Ewing & Hedgpeth and Dan Shell all of Jackson, for appellants.

Greek L. Rice, Atty. Gen., John E. Stone, Asst Atty. Gen., and Corban & Corban, of Fayette, for appellee.

GRIFFITH Presiding Justice.

Appellee county, as statutory trustee, instituted suit seeking to cancel all claims of the defendants to Sec. 16, Tp. 9 N. R. 4 E. in said county. Three of the defendants appellants here, appeared and defended as to the west half of said section, and have appealed from an adverse decree.

By Secs. 2015 to 2019, inclusive, Code 1871, it was provided that the school directros of each district, upon an affirmative vote of the qualified electors of the township could sell the lands appropriated for the use of schools in that township. The several steps to be taken to effectuate such a sale were specified, concluding with the provision that 'The school directors are hereby authorized and required to execute all conveyances, on behalf of the township, for any lands sold as herein provided * * *.'

On January 1, 1875, L. Long, Superintendent of Public Education of the couty and ex officio president of the board of school directors, acting in his official capacity, and in consideration of $100 paid, conveyed the N 1/2 of NW 1/4 of said section to Emeline E. Stevens, and on the same day the said Long acting as aforesaid, and in consideration of $100 paid, conveyed the SW 1/4 and the S 1/2 of NW 1/4, less 13.79 acres off the east side, to Wm. A. Abbott, both deeds being duly acknowledged on February 3, 1875, and recorded. The books of the county treasurer show the payment of the $200 under date February 4, 1875.

Soon after the execution of the foregoing deeds the grantees therein went into the actual possession and occupancy of the lands therein described, and they and their lawful successors in title have remained so in actual possession and occupancy of the whole thereof continuously for more than seventy years. Appellants here are the successors in title as aforesaid to all the land for which they have defended, and as described in the two deeds aforementioned, and they rely not only upon the said deeds, but also upon the twenty-five years statute of limitation applicable to school lands, in effect since the Code of 1892. That statute, now Section 6596, Code 1942, reads as follows:

'Adverse possession for a period of twenty-five years, under a claim of right or title, shall be prima facie evidence in such case that the law authorizing the disposition of the lands has been complied with and the lease or sale duly made.'

Appellants have gone to some trouble to show by pertinent authority that the statute authorizing the sale of these township lands was within the constitutional power of the Legislature, there being nothing in the Constitution of 1869 to prohibit it. The Attorney General in response does not challenge the constitutionality of the cited statute, and the question not being raised by the state or county, the case will be treated as if no such point had been mentioned. State ex rel. Jordan v. Gilmer Grocery Co., 156 Miss. 99, 122, 125 So. 710.

But the State relies on what was said by this Court in Weiler v. Monroe County, 76 Miss. 492, 25 So. 352, to the effect that the court had been wholly unable to find any legislative authority for the sale of sixteenth section lands and that a lease was the utmost that the claimant could assert. That case had been before the Court in 74 Miss. 682, 21 So. 969, 22 So. 188. The reports of these two cases show that what the Court was dealing with were the statutes of 1839, and those previous thereto. The language of a Court opinion must be interpreted in the light of what the Court was considering at the time. Certainly the Court could not have been looking to statutes subsequent to 1839, for if so, the cited sections of the Code of 1871 would have made the statement of the Court impossible. Be that as it may, it requires no elaboration of discussion to support the declaration that it is not within the power of any court to wipe a plain statute out of an official code by the ipse dixit that there is no such statute.

The State contends that the two deeds made for the school authorities on January 1, 1875, were not made by the school directors as the statute required, but were made by the president thereof. A sufficient answer to this contention is contained in Forsdick v. Tallahatchie County, 76 Miss. 622, 24 So. 962. The State contends, also that the minutes of the Board of Supervisors contain no order appointing appraisers as required by Sec. 2016, Code 1871, and that since a board of supervisors can speak only by its minutes, this means that no appraisers were appointed, and that there was a failure to take an essential step to the validity of the sale.

The showing thus made by appellee is one negative in its nature whereas it was distinctly held in Yazoo & M. V. R. Co. v. Bolivar County, 146 Miss. 30, 111 So. 581, that the showing to displace the curative effect of the twenty-five years' statute must be an affirmative showing that there was no valid sale or lease. The force of the twenty-five years' statute is such that it will support the presumption that...