Hewling v. Blake

• Decision Date: 13 December 1915
• Docket Number: 17084
• Citation: 110 Miss. 225,70 So. 247
• Court: Mississippi Supreme Court
• Parties: HEWLING ET AL. v. BLAKE ET AL

70 So. 247

110 Miss. 225

HEWLING ET AL. v. BLAKE ET AL

No. 17084

Supreme Court of Mississippi

December 13, 1915

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

Suit by S. A. Hewling and others against Henry L. Blake and others. From a judgment for defendants under a cross bill, plaintiffs appeal.

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

Decree affirmed as to north half of section 6, and reversed as to southwest quarter.

T. G Birchett and Hirsh, Dent & Landau, for appellants.

It has been the law of this state, back and prior to the time of the alleged purchase of the land from the county by Benson Blake that "all sales of land and all other conveyances whatsoever of lands shall be void as to all creditors and subsequent purchasers for valuable consideration without notice unless they shall be acknowledged, or proved and lodged for record." Code of 1857, p. 310, article 21; Code of 1871, section 2304; Code of 1880, section 1212; Code of 1892, section 2457 Code of 1906, section 2784.

The sections cited, supra, have been the law since before the date of the alleged sale from Warren county to Benson Blake and to this day. The effect of these sections being that when one receives a deed to a parcel of land and fails to have it recorded, that a subsequent purchaser without knowledge of same acquires a valid title to same; and he who withholds his deed from record is defeated of his ownership, unless the other had actual notice thereof.

The decisions construing the above sections have almost uniformly involved the question, as to whether the purchaser claiming under the unrecorded deed would be saved by the purchaser under the subsequent deed having actual notice of such an unrecorded deed.

"While possession of land under an unrecorded deed is equivalent to registration while the possession under it lasts, but a purchaser of the land, where the record shows a good title is not bound to look beyond the record of a former occupancy of it under a deed of which he is not shown to have had notice." Hiller v. Jones, 66 Miss. 636, Syllabus; Newton v. Priebatch, 16 Miss. 406; Humphreys v. Merrill, 52 Miss. 94; Taylor v. Lowenstein, 50 Miss. 281; Henderson v. Downing, 24 Miss. 106, and Harper v. Tapley, 35 Miss. 606.

It is the law in Mississippi that a purchaser of a legal title is not effected with record notice of any conveyance except those through whom he is compelled to deraign his title. Baker v. Griffin, 50 Miss. 158; Harper v. Bibb, 34 Miss. 472; Session v. Reynolds, 7 Smedes & Marshall, 153; Hiller v. Jones, 66 Miss. 642; Hart v. Gardner, 81 Miss. 650.

Having as we think established the law beyond dispute that the deed even if it existed, which was denied by the pleadings, not being of record, was not effective against the appellants, we will discuss the order of the board of supervisors, or rather its predecessor, the board of police. What could this operate as, and to what extent was it notice?

The county map is put in evidence by the appellees and it shows, now owned by the Blakes, appellees, the very land shows in the order, supra, we will explain. The land involved in the instant suit is section 6, township 17, range 4, east, Choctaw district. The land in the order is section 6, township 17, range 4, east. The map shows two sections by the number 6, one in township 17, range 4, east, Choctaw district, and the other not in the district at all; in other words there were two sections 6, of the same township and range, one in the district and one ordinary Government Survey. The order does not show the county, by its board of police, even sold the one in Choctaw district to Mr. Benson Blake, but shows it sold the other, the plain section. The map shows that the plain section is owned by the Blakes and so does the evidence. What notice could be imputed to an order (even if this court should take the view, which we do not think is the law, that the order is to be so dignified and is to be considered as notice), when this order does not set forth the land purchased by the appellants, but other land adjoining said land purchased by them, which was owned by the Blakes. We think this undoubtedly eliminates the order from all consideration. It clearly is not anything upon which a claim of an unrecorded instrument could be based, as it does not even call for or describe the land involved in the instant suit. A deed, even of record, from the county to Benson Blake, omitting the Choctaw district, as the designation of the land, and describing it by the regular survey, would not put the appellants on record notice, because, describing under the order, land in the neighborhood held by the Blakes, it could not have suggested it meant land a mile or so off of another description. Any other construction would entirely destroy the whole theory of the registry statutes.

The land involved in the instant suit is wild land, uncultivated, unfenced, a howling wilderness, primeval forest, as appears from the evidence in this case; subjected to no actual occupation, no possession by the appellees, who may claim they paid the taxes on these lands, not subject to assessment or taxation, permitted three independent cuttings, scattered over nearly thirty years. This court has held that payment of taxes was not evidence of possession (Leavenworth v. Reeves, 64 So. 663-5-6). Land owned by the county is not subject to assessment or to taxes, being exempt by the statutes of this state, since before 1858, therefore what can the illegal assessment and unlawful collection of taxes on land not subject to same have on any purchaser who finds the land owned by the county on the records of deeds, where the law obligates him to search. What notice can unlawful acts have, impute or give? Lands owned by the county were specially exempted from all assessment and taxation, as follows, to wit: Code 1857, p. 73, Art. 11; Code 1871, sec. 1662, page 344; Code 1880, sec. 468; Code 1892, sec. 3744.

Hereafter, in our brief, we will discuss the law of adverse possession taken in connection with the evidence herein, which will show no occupancy, ownership or claim of any kind was even made to these lands until after suit was brought, recognized by the law.

In Taylor v. Mosely, 57 Miss. 547, the court says: Where in the record does the evidence show open, notorious, or exclusive possession of the lands by the appellees under a legal or equitable title? The evidence of Mr. T. R. Foster, record pages 55 to 58, introduced by the appellees, shows that since 1889 he has been, up to the time of their sale, in possession of said lands for Warren county, trying to sell same; had time and again showed purchasers over the lands, had them surveyed and had no knowledge the Blakes even thought they owned same until after the sale by the county. These lands, one of the appellees had only been over once, and that after the sale, and so far as the record shows the other appellee had never seen the lands. That he had, for the county, given the same permission to Capt. Fletcher, who must have doubted the appellees' claim, or he would not have gotten the consent of the agent of the county for his fishing club. Foster is the witness of the appellees and his evidence shows the county claimed same since 1889. The record shows nothing but, on its face, an unlawful payment of taxes, on lands not subject thereto, and two timber cuttings years apart, and the evidence does not fix these cuttings with any certainty on these lands.

We will now take up the claim of the appellees to the southwest quarter of section 6, township 17, range 4, east, C. C., and we will undertake to clearly demonstrate that the appellees never had or acquired any title of any kind whatsoever to this land.

The appellees, in making their claim, do not undertake by even a shadowy deed, or a long lost and forgotten order of the board of police, which no one is charged by law to look up, or any other claim of transfer from Warren county, to acquire this land. They base their claim of title on a tax deed (rec. p. 23) from David Garrison, Tax Collector of Warren county, to the State of Mississippi, dated July 1, 1867, recorded in Deed Book "G. G.," p. 302, for the taxes of 1866, and a forfeited land patent from the state to B. J. Miller, dated October 13, 1869 (rec. p. 23) and a quitclaim deed from R. J. Miller to Mary S. Blake, dated January 25, 1873, recorded in Deed Book "P. P.," p. 200.

At the time of the sale to the state of Mississippi by the Tax Collector, supra, it is conceded and shown by the record in this case that the title and ownership of this land was in Warren county.

This tax sale is unquestionably void, because at the time of the sale the land owned by the county was not subject to assessment or sale for taxes. The Code of 1857 was operative at that time, and on page 73, article 11, the law distinctly says that land held by the county is not subject to taxation. It is hardly necessary to cite the recent decisions of this court on such a clear proposition. We will mention, in passing, Edwards v. Butler, 89 Miss. 179, and Howell v. Miller, 88 Miss. 655.

In this last case (88 Miss. 667) "The swamp and overflowed lands were never the subject of taxation and the sale for non-payment. Not being subject to any tax or any assessment, a sale of them had no warrant of law and the purchaser acquired no title against the state, or the state's vendee who bought with a warrant of law for this special sale."

These lands having been conveyed under the act of the legislature hereinafter discussed, and the title being vested in the county for public uses pursuant to the terms of the donation, were not subject to taxation, or sale, for non-payment; and such sale could...