Huber v. Freret

• Decision Date: 26 January 1925
• Docket Number: 24271
• Citation: 103 So. 3,138 Miss. 238
• Court: Mississippi Supreme Court
• Parties: HUBER v. FRERET et al. [*]

103 So. 3

138 Miss. 238

HUBER v. FRERET et al. ^[*]

No. 24271

Supreme Court of Mississippi

January 26, 1925

Division B

Suggestion of Error Overruled March 9, 1925.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by Mrs. Maggie Freret and others against J. A. Huber. From a decree for plaintiffs, defendant appeals. Reversed and remanded.

Reversed and remanded.

R. B. Ricketts, for appellant.

On January 17, 1923, there was attempted to be executed by the state land commissioner and sundry other state officers what is called a "public land patent." This instrument purports to convey to the complainants certain land in ten acre lot number 1 in Jackson which land is described as "Beginning at the Southeast corner of the property owned by Mrs. Kate Johnson, run thence East along Capital street to Town creek, thence along the meandering of Town creek to the Northwest corner of the Johnson lot, thence south to the point of beginning."

This attempted purchase of land from the state deserves close examination because, after the various shifts of base indulged in by the complainants, it has come at last to be the foundation of their claim of title. For all practical purposes they may be taken to have abandoned any claim against Mr. Huber except so far as they may have a claim under the purported patent from the state. The patent appears in full at page 21 of the record. It appears again at page 84.

The pleadings filed here for the appellees disclose the fact that the property which they are attempting to take from Mr. Huber is improved Capital street business property. Such property is exceedingly valuable. The complainants aver that it is so improved and is producing revenue. They claim it under the terms of a supposed patent for which they paid the state of Mississippi the sum of one dollar.

The appellees claim that under the state patent they own a strip of land between the present course of Town Creek and the East line of the Lake-Bauer-Dunbar lot. They say that Huber has built upon this lot of land and is deriving revenue from it.

How did the state get this supposed title which the appellees are now claiming? It is their contention that this land was never sold at any time by the state. That it was part of the land ceded to the state for the seat of government and was never disposed of. This is their position and states their chain of title: "The United States conveyed this land to the state. The state never sold it until we bought it for a dollar."

The appellant contends that the appellees' pleadings in this case show conclusively that the alleged state land patent is void. This condition arises on two accounts: A. It is an instrument which involved a donation of the lands of the state. B. The officers who attempted to execute the state land patent had no authority to convey, in any way or for any price, lands forming a part of the grant to the state of lands for the seat of the state government.

"Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies." Constitution of Mississippi, sec. 95. The payment of the recited consideration of one dollar by the appellees to the state no more saves the transaction from being an actual donation than did the payment of the charge of two dollars and fifty cents provided for by the language of section 2, chapter 121, Laws of 1908. The act of 1908 was condemned by this court as unconstitutional. "But if this were not true, the statute violates section 95 of the Constitution, as it is a donation of lands belonging to or under the control of the state within the meaning of section 95 of the Constitution." Winton v. Day, 96 Miss. 1, 49 So. 264.

The test of a transaction as to whether or not it involves a donation is a simple one. Did the recited and paid consideration have any actual and direct relation to the true value of the property?

This court cannot know, without proof introduced, what was the exact value of the land claimed by the appellees but it does know that a lot fronting forty feet on the best part of the best business street of a city of thirty thousand population,--and a lot that is improved by the construction of a store building--has a value which could not conceivably be as low as the one dollar paid for it by the appellees. Perhaps it may be contended that the state had no title to this property that could be worth to any one the actual whole value of the property. The practical answer to such a contention is a simple one. That title for which appellees paid a dollar is the only title which they now assert or can assert against the appellant. On the strength of it they base their claim to thousands of dollars worth of property. They now say--as they are forced to say--that the state of Mississippi had a good title to the property for which they sue and sold that title to them for a dollar.

The position which they are forced to take involves decisive and conclusive proof of the truth of our assertion that the transaction under which they claim title involved a donation of land owned by the state. If the state owned the property in controversy and conveyed that property to appellees the payment by them of their one dollar cannot save the patent from invalidity. The officers of the state have authority limited not only by the statutes but by the Constitution itself.

The officers who attempted to convey away the state's land by the patent relied upon by the appellees were wholly without authority to convey, even for an adequate price, the class of land to which this Capitol street property belongs. The supposed patent recites that it is issued under the provisions of section 2919, Code of 1906. An examination of the provisions of that section will make it perfectly clear that lands in the city of Jackson and claimed by the state under the grant from the United States already referred to do not fall within the provisions thereof.

The land attempted to be conveyed was not land that had escheated to the state. It was not land "coming to it in any other manner," for the word coming evidently means "which shall hereafter come." Otherwise the same form of expression would have been used as in the case of escheated lands and the language would have been "having come or coming" to it in any other manner, etc. This land is not an "accretion of land not the subject of private ownership." So that if it is open for sale at all it must be within the limits of the expression "all other lands within the borders of the state and not belonging to the United States nor owned by another." But the whole statute clearly indicates that it is to apply to acreage property and not to city lots. The commissioner is authorized to sell lands coming within the provisions of the section "at the same price as the swamp and overflowed lands."

It was never the intention of the legislature that the provisions of section 2919 should apply to or include town lots in Jackson. It is clear that the section is intended to cover lands which could properly be sold on an acreage basis just as the swamp lands were sold. To give it any other construction would involve what seems to us to be an evident absurdity. Even if appellees had paid full value for the land they are claiming, their patent would be worthless to them except as evidence of a claim against the state for refund of purchase money. It was executed under the provisions of a statute which clearly had no application to the class of lands sought to be conveyed.

W. E. Morse and W. A. Scott, Jr., for appellees.

Appellant states that this patent is void, or that this court should construe it to be void. Appellant pins his entire case on this point. The court will bear in mind that complainant's mother claimed to own this land. That on her death these complainants were minors and moved away from here; that if no patent was in question that it was their property, unless it be the claim of defendant by adverse possession who had constructed a part of this building on their property for a little over ten years.

Section 5247 and section 5254 are not in conflict with section 95 of the Constitution. The price is stated at which this property can be sold. Mere inadequacy of price does not make a grant a gift, neither does it make the conveyance void in the absence of fraud. State v. Dantzler Lbr. Co., 53 So. 1.

A bill by the state to cancel a conveyance of timber on sixteenth section lands to the lessee of the land for five hundred dollars which gave him twenty years in which to remove the timber, and provided for a surrender of the remainder of the lease as soon as he had cut the timber or at the expiration of twenty years, alleged that the timber was worth three thousand dollars, that the price was grossly inadequate, that there was no necessity to sell the timber, that it was sold by the board of supervisors because the lessee wished to purchase it, and not to promote the interest of the owners of the property, and that the board knew no one else could bid on it because of the lease to defendant: held, that the bill showed no fraud or collusion between the board and defendant, especially as the surrender of the remainder of the lease after the timber was cut, or at the end of twenty years was a consideration for the conveyance, additional to the money consideration. State v. Blodgett, 110 Miss. 768, 70 So. 710; State v. Watson, 70 So. 711; not officially reported; State v. Blodgett, 70 So. 710, not officially reported; State v. Martin, 70 So. 710, not officially reported.

The case of Winston v. Day, 96 Miss. 1, has no bearing on this case. There the legislature attempted to convey certain...