Jenkins v. Bernard

• Decision Date: 14 November 1927
• Docket Number: 26661
• Citation: 148 Miss. 293,114 So. 488
• Court: Mississippi Supreme Court
• Parties: JENKINS v. BERNARD. [*]

114 So. 488

148 Miss. 293

JENKINS v. BERNARD. ^[*]

No. 26661

Supreme Court of Mississippi

November 14, 1927

(Division B.)

PUBLIC LANDS. Land commissioner could not convey title to urban property divided into lots; it being conclusively presumed to have value above rural property (Hemingway's Code 1927 section 6084).

Under Hemingway's Code 1927, section 6084 (Code 1906, section 2916)., land commissioner could not convey state's title to urban property, which had been divided into lots, blocks and streets, since urban property, surveyed and mapped into usual subdivisions, is conclusively presumed to have value above that of rural property.

Division B

APPEAL from chancery court of Harrison county.

HON. V A. GRIFFITH, Chancellor.

Suit by Ira Jenkins against Amelia S. Bernard. From a decree dismissing complainant's bill, complainant appeals. Affirmed.

Decree affirmed.

W. T Moore, for appellant.

Appellee relied on Huber v. Freret, 103 So. 3-5. In State ex rel. Knox v. Lockyer, 106 So. 748-749, this court held that the land commissioner had authority to sell rural lands platted into lots and blocks valuable only for its timber, pasturage or agriculture, and further said: "As to whether or not the doctrine of the Huber case, prohibits the sale by the land commissioner of all urban land which has been surveyed and divided into lots and blocks, we are not here called upon to decide, but it may be noted that the holding in that case is expressly limited to the right to sell 'urban business lots.'"

It is therefore evident from the holding in these two cases that it was not the intention of this court to hold that the mere platting of lands into lots and blocks, whether urban or rural, precluded the land commissioner from selling same, but the physical character and use that controlled.

Appellant contends that the Huber case does not cover the case at bar, the testimony failing to show that the lot in question is an "urban business lot."

The case at bar does not fall within the rule of either case. It seems to fall within a class midway between the kind of property dealt with in the Huber case and that dealt with in the Lockyer case. The class of property before the court is an urban lot, not suitable for business purposes, unoccupied and unused, on the edge of a swamp and covered with trees, shrubbery and the like, and within an urban residential district and not valuable for timber, agriculture or pasturage, having an area of one-tenth of an acre, and not commonly sold as acreage but by the lot.

The question for the court in its last analysis is whether the legislature under chapter 77, Code 1906, intended to limit the class of lands that could be sold by the land commissioner to such lands as are usually sold by acreage. Appellant contends that such was not the case.

Under section 2905, Code 1906 (section 5240, Hemingway's Code 1917) it was expressly provided that the land commissioner could sell all of the lands forfeited to the state for taxes. No exception is made except as to the Choctaw School lands. There can be no question as to the power to sell, the only question remaining is the manner of sale. Section 2906, Code 1906 (section 5241, Hemingway's Code 1917) and succeeding sections provide the manner and terms of sale.

It is therefore manifest, from the reading of all of the sections referred to, that the land commissioner could sell tax lands, at a price less than one dollar and twenty-five cents per acre in the discretion of the Governor and land commissioner, or could as in the case of swamp and overflowed lands sell tax lands for more than one dollar and twenty-five cents per acre, if the Governor and the land commissioner deem any of said lands to be worth more than that sum.

Having provided that the land commissioner could sell, and fix the price of tax lands, the question remains by what description he could sell. On this point the statute is perhaps ambiguous. If the land commissioner could sell one acre of land, he could sell any number of acres, or any part of an acre, and if he could sell any part of an acre he could sell one-tenth of an acre, no matter whether it was described as "one-tenth of an acre," or described by metes and bounds, feet and inches, or lots and blocks, as for instance "Lot 36, Block 20, Soria City Addition," so long as the price would average the minimum of one dollar and twenty-five cents per acre, computing the area.

Where the meaning of a statute is ambiguous, resort may be had to the real purpose and intention of the legislature in adopting the Statute, which when ascertained the court will give effect to, even though the letter of the Statute be violated. See Kemper v. Hemingway, 17 So. 809; Bonds v. Greer, 56 Miss. 70; Learned v. Corley, 43 Miss. 687; Adams v. Y. & M. V. R. R. Co., 75 Miss. 275; Huber v. Feret, 103 So. 3-5.

Would it be reasonable to suppose that the legislature after providing that the land commissioner should sell tax lands, in fact all of the public lands of the state, except Choctaw School Lands, would intend that he should sell only such lands as are usually bought and sold by the acre and as are suitable for timber, agricultural or pasturage? The appellant respectfully submits that this is not reasonable. To do so would be to impute to the legislature an unwise and unjust purpose, when a reasonable construction would save the statute from such imputation, and particularly so when it would not require the court to go beyond the strict letter of the law.

The appellant believes that what the court meant in the Huber case was that where a forty-foot lot, on the main business street, of the Capital City of the state, was sold by the land commissioner for one dollar, it was on its face so unjust and unwise and was such an inadequate price and so contrary to the interest of the state, as to justify its course in that case. Can the same be said in this case, of a twenty-five-foot by one hundred-fifty-foot lot, in the edge of a swamp, unimproved, unused, sold for the sum of fifty dollars by the land commissioner?

The appellant respectfully submits that such was...