Hamner v. Yazoo Delta Lumber Co.

• Decision Date: 20 November 1911
• Docket Number: 14859
• Citation: 56 So. 466,100 Miss. 349
• Court: Mississippi Supreme Court
• Parties: W. M. HAMNER ET AL. v. YAZOO DELTA LUMBER COMPANY

56 So. 466

100 Miss. 349

W. M. HAMNER ET AL. v. YAZOO DELTA LUMBER COMPANY

No. 14859

Supreme Court of Mississippi

November 20, 1911

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

Suit by the Yazoo Delta Lumber Company against William M. Hamner et al. From a decree for complainant. defendants appeal.

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

Reversed and bill dismissed.

Tim E Cooper, for appellant.

On the 24th of June, 1909, the appellee the Yazoo Delta Lumber Company, exhibited its bill in the chancery court of Sunflower county against the appellants to cancel as a cloud upon its title the claim of title asserted by the appellants. The complainant traced the title, which it is conceded is a good title, unless divested by a tax sale and possession thereunder.

The appellants answered the bill, setting up that the land was sold for taxes due thereon for the year 1891, on the 7th day of March, 1892, and was bought by one N. T. Burroughs, and a conveyance made to him by the tax collector; that Burroughs afterwards sold the land to the Burroughs Land & Trust Company, and that company afterwards sold to Harry A. Dorsey who sold to the. Quiver River Company; and that the Quiver River Company sold to the appellants. The answer avers that after the period of redemption had expired, Burroughs entered into occupation and possession of the property, and so remained until he conveyed to the Burroughs Land & Trust Company, and that company then entered in possession, and so remained until it conveyed to Dorsey; that Dorsey thereupon entered into possession, and so remained until he conveyed to the Quiver River Company; and that company then entered in possession, and so remained until it sold to the appellants, who thereupon entered into possession, and have so continued.

The appellants pleaded that they and those under whom they claimehad the actual occupancy for three years after one year from the date of the sale of the lands for taxes, and that they and those under whom they claimed have been in the actual occupation for three years after two years from the date of the sale of land for taxes, under a conveyance by the tax collector in pursuance of a sale for taxes. And the appellants especially pleaded the bar of the statute of Mississippi, to wit, of section 539 of the Code of 1880, and of section 2735 of the Code of 1892.

The EVIDENCE.

The case was submitted on an agreed statement of facts found in the record. It was agreed that the complainants were the owners of the land on the 7th day of March, 1892; that on that date the land was sold by the sheriff and tax collector of Sunflower county for the taxes due, which had not been paid, and thereupon executed a deed conveying the land to one N. T. Burroughs, the purchaser at said tax sale; that the tax deed was filed with the clerk of the court, and there remained until after the expiration of one year from the date of said tax sale; that said land was not redeemed within the year, and the deed from the tax collector to Burroughs was duly recorded by the clerk on the 28th of March, 1893; that the tax sale was made under an assessment under the act of 1888 known as the "Madison Act," and was in all respects regular and in accordance with the provisions of the act, and was made for the taxes of 1891; that, shortly after the recordation of the said deed to him, Burroughs, the purchaser, entered in possession of the land and had the actual occupancy of the same for the space of three years after the expiration of one year from the day it was sold for taxes, and also had such actual occupation and possession for the space of three years after the expiration of two years from the date of the sale for taxes, and said Burroughs entered upon the land and held possession and occupancy continuously, claiming title thereto; that after the expiration of five years' occupancy the said N. T. Burroughs ceased to actually occupy said land, and did not make any further improvements thereon, nor erect any buildings or fences, and that neither he nor those claiming title through him have ever occupied the same, or erected buildings or fences thereon, after Burroughs ceased to occupy the land, but only the following acts were done in regard to the said land: He sold large quantities of timber therefrom, aggregating about two hundred thousand feet, during the year 1897-1898, which timber was cut and hauled off the land. In August, 1899, he conveyed by a deed with a warranty of title to Allen & Co. all the remaining timber thereon, which deed was duly recorded in the chancery clerk's office in said county; but thereafter, and during the time he was claiming to be the owner of the land, up to and including the year 1904, he applied to the complainant through its president, A. E. Randle, from time to time for a quitclaim deed to the land and made every effort to secure the same. That he and his son made several trips to Washington city and to Philadelphia to see the president of the complainant company, and wrote letters from time to time, and submitted deeds to the company, which it refused to sign. That at one time he agreed to buy all the lands of the Yazoo Delta Lumber Company in Sunflower county. The agreement is that the conveyances were made as set out in the appellants' answer and duly recorded, that the said N. T. Burroughs and those claiming under him have annually paid the taxes on said land from the year 1892 down to the present, and that complainant had not, during that time, paid any taxes on said land, and had done no other act of ownership regarding the land than claiming to be the owner thereof, until the filing of this suit. The agreement of facts contains further statements as to the amount of taxes paid by Burroughs and those claiming under him.

DECREE IN THE COURT BELOW.

On the pleadings and agreements of facts above stated, the chancellor held that the defendants' title was void, and decreed the same to be canceled. He then rendered a decree fixing a lien upon the land for the amount of taxes paid by the defendants and those under whom they claimed.

From that decree the appellants appeal, and the appellee prosecutes a cross-appeal.

ASSIGNMENT OF ERROR.

Come the appellants and assign for error:

First. The court erred in holding and deciding that the appellee was the owner of the lands described in the bill.

Second. The court erred in holding and deciding that the appellants were not the owners of the lands described in the bill.

Third. The court erred in holding and deciding that the appellants' title to the lands in controversy was not protected by the statute of limitations of three years.

Fourth. The court erred in granting appellee relief.

BRIEF.

I begin the discussion of this case by the admission that there are several decisions of this court which directly and undoubtedly support the decree of the chancellor, in which there is necessarily involved the decision that, because the tax sale under which the appellants derive title was void, the title is not protected under the short statutes of limitation prescribed by Code of 1880, section 539, and Code of 1892, section 2735. Notably among these decisions are: Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Eastland v. Lumber Company, 90 Miss. 330, 43 So. 956; McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 47 So. 801.

If these decisions are to be adhered to, and if the rights of the appellants are not to be upheld, because they were secured at a time when, under the settled decisions of this court, these statutes applied in all classes of cases in which the occupant claimed under a tax title, we admit that the decree of the court below must be affirmed.

This appeal is brought for the purpose and in the hope of getting this court to overrule these cases and to adopt the principle laid down in the still later case of Jordan v. Bobbitt, 91 Miss. 1. In the latter case, a majority of this court, after extended argument and mature consideration, adopted the view that a short statute of limitations prescribed for a particular class of cases, to wit, sales by administrators and guardians, operated to protect the title, although the sale itself was void and conferred no title. The conflict between the cases of Eastland v. Lumber Company, Kennedy v. Sanders, and McLemore v. Anderson on the one side, and Jordan v. Bobbitt, on the other, is clear and irreconcilable. The only question is which of the two inconsistent rules announced in these cases will be accepted by this court.

I think it will aid the court in the consideration of the present case to make a short statement in reference to the statutes of this state passed for the protection of purchasers at tax sales and the decisions of this court in their construction. The statutes themselves are of two classes: First. Those in which, without reference to the fact of possession by the purchaser at the tax sale, the title was intended to be protected by the mere lapse of time. Second. The statute by which actual possession by the purchaser for a period of three years, beginning more than two years after the date of the tax sale, protected the title of the purchaser as against all persons sui juris.

The statutes of the first class may again be divided into two classes: First. Those in which the protective provision was a part of the law at the time of the sale for taxes and operated prospectively only. Second. Cases in which the protective statute was not a part of the law under which the tax sale was made, but was passed subsequent to the tax sale and was retrospective in its nature.

The first of the statutes of the first class is found in the act of February 10, 1860 (Acts 1859-60, p. 213, section 7). By that...