Johnson v. Langston

• Decision Date: 25 October 1937
• Docket Number: 32727
• Citation: 179 Miss. 622,176 So. 531
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. LANGSTON

176 So. 531

179 Miss. 622

JOHNSON v. LANGSTON

No. 32727

Supreme Court of Mississippi

October 25, 1937

Division A

1. LANDLORD AND TENANT.

A tenant who purchased interest of purchaser at tax sale made before beginning of tenancy could only assert claim of title against landlord after surrendering possession to landlord pursuant to rental contract.

2. PRINCIPAL AND AGENT.

Where sisters authorized brother to rent land, testimony of one sister, on interrogation as to who managed and controlled land, that she managed and controlled interest of the other sister "in a way," but had her brother "look after it down here for me," did not establish that brother was authorized to make statement inducing tenant to buy from tax purchaser, so as to estop such sister, who received deed of interest of the other sister, from objecting to tenant's setting up claim of title against her.

HON. E M. LIVINGSTON, Special Judge.

APPEAL from the circuit court of Webster county HON. E. M LIVINGSTON, Special Judge.

Proceeding by Mrs. Chaney Bridges Langston against Sam J. Johnson. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Cowles Horton, of Grenada, for appellant.

We submit, at the outset, whether appellee is not estopped from seeking to defeat appellant's possession of the property, having, to the extent shown by the statement of facts, induced appellant to make his purchase. In support of this view we call attention to the following authorities wherein the doctrine of estoppel has been applied or referred to.

10 R. C. L. 780; 21 C. J. 1154; Kelso v. Robinson, 172 Miss. 828; Staten v. Bryant, 55 Miss. 261; Dayhood v. Neely, 135 Miss. 14; Davie v. Butler, 128 Miss. 847; Crisler v. Whadley, 102 Miss. 755; Hafter v. Strange, 65 Miss. 323; Kelley v. Skates, 117 Miss. 900; Sively v. Williamson, 112 Miss. 276; Sulphine v. Dunbar, 55 Miss. 255; Day v. Railway Co., 69 Miss. 589.

Appellant was a tenant of the land and his relation to the appellee was such that the statements made to appellant by her agent carried with them that weight which the relationship justified. This becomes particularly true when we consider that, if appellant had purchased without appellee's consent, appellee would have probably claimed that the purchase inured to her benefit, as landlord.

This action under the law is purely possessory and analogous to replevin for personal property. In such action a plaintiff becomes entitled to a judgment that he "recover possession of the land."

Section 3467, Code of 1930.

While title is not involved, the court may, and in proper cases should, examine the title in order to correctly determine whether the plaintiff is or is not entitled to a judgment for the possession of the land.

26 C. J. 859, sec. 126; Murf v. Maupin, 113 Miss. 670; McCallum v. Gavin, 149 Miss. 885.

In this suit, appellee maintains that she is entitled to the possession of this property and to displace appellant from the property. Ignoring at this point the validity or rightfulness of appellant's claims, we submit that appellee must recover solely and alone upon the establishment of her own right to possession, failing in which she may not prevail. This rule is aptly applied in the following authorities, wherein the respective defendants in those cases may have been without any right of possession at all.

Clymer v. Powell, 56 Miss. 672; Hammel v. Atkinson, 82 Miss. 465.

Appellee was the owner of this land. She failed to pay the taxes for the year 1930 and on June 1, 1931, the land was sold for taxes to the Corinth Bank. Under the laws and constitution of this state appellee had two, but only two, years within which to redeem. During that time the tax purchaser's title was inchoate and incomplete, nevertheless it was "a perfect title to the land sold for taxes, but without the right of possession and subject to the right of redemption."

Section 3256, Code of 1930; Pool v. Ellis, 64 Miss. 555; Murphy v. Seward, 145 Miss. 727.

Appellee failed, however, to redeem the property and thereupon by virtue of the sale and the expiration of the redemption period, she lost not only her right of possession but her title as well.

Greene v. Williams, 58 Miss. 752.

Keeping in mind that, subject to the right of redemption, the title passed at the sale itself (Eureka Lbr. Co. v. Terrell, 48 So. 628), it becomes clear, we think, that appellee lost her right of possession to the land finally and completely just as soon as the period of redemption expired.

No duty is devolved by the law upon the tax purchaser to keep up subsequent taxes as a condition to the validity of his own tax title.

Murphy v. Seward, 145 Miss. 713.

If appellee owns the land, the redemption from the sale to the state inured to her benefit; if appellee ceased to be the "real owner" by virtue of the first tax sale and her failure to redeem therefrom, then certainly she was not the "real owner" at the time of the redemption from the later sale to the State. This, we submit, is bound to be true on a proper consideration of the facts.

Jamison v. Thompson, 65 Miss. 516; Greene v. Williams, 58 Miss. 752.

Appellee claims that appellant acquired no title to the property by his purchase from the Bank of Corinth on the ground, as we understand, that the Bank did not receive a deed to the land as provided by Section 3273 of the Code. We submit, however, that the counsel overlooks the fact that appellant is merely defending a suit wherein appellee must recover, if at all, upon the strength of her own right of possession and not on the weakness of that of the appellant.

Appellee claims also that if appellant did acquire such title by his purchase from the Bank "it inured to the benefit of the appellee, his landlord." We frankly concede that under the old English rule and in some of the states now counsel's position would be correct, but the weight of authority and decisions of our own court do not support that position.

35 C. J. 1246, sec. 602; 16 R. C. L. 668, sec. 155; Lyebrook v. Hall, 73 Miss. 509; Walker v. Harrison, 75 Miss. 665.

In its memorandum, the court calls for discussion of the question whether appellant's duty was "to restore possession of the land to her before attempting to assert any title he may have acquired adverse to her before surrendering possession of the land." Under the feudal system and in some jurisdictions now, before the tenant may set up an adverse title against his landlord he is required to surrender up the possession which he acquired under his tenancy so as to put the landlord in the vantage place of a defendant in possession. However, the present authorities on the subject are divided and in many jurisdictions actual surrender is not required.

35 C. J. 1352-3, secs. 616, 617; 16 R. C. L. 658, sec. 144.

We do not find, nor does counsel produce, a decision of the question in our own court. In numbers of cases wherein the point was not presented for decision there is dicta which would appear to support appellee's claim. Nevertheless this court has distinctly held in at least three decisions that the tenant may set up an adverse title against his landlord without surrender of possession provided the landlord has knowledge of the tenant's adverse claim.

Holman v. Bonner, 63 Miss. 131; Land Co. v. Ball, 68 Miss. 135; Greenwood v. Moore, 79 Miss. 201.

After appellant's acquisition of the tax title, his possession of the premises was in his own right and not in virtue of his tenancy.

T. W. Scott, of Eupora, for appellant.

Appellee must stand on the strength of her title and consequent right to the possession of this land or fail in this law suit, and unless she has been able to show title in herself then she has no right to recover possession of this land.

There is no question but that she had a perfect title to this land until she failed to pay the taxes of 1930 thereon and the land was sold for these taxes on June 1, 1931, and the filing by the tax collector of the list of lands sold to individuals thereafter, at which time this title was, by virtue of the provisions of Section 3256, Code of 1930, divested out of the appellee and invested in the Corinth State Bank, the purchaser at said sale.

After that time, under the provisions of said Section 3256, Code of 1930, she had the right to possession of said land until the 2nd day of June, 1933, and also the right to redeem said land from said sale, and the subsequent sale of the same made to the State of Mississippi in June, 1932, for the taxes of 1931, when she lost, by virtue of the time of the redemption from said sale of said land for the taxes of 1930, having expired, all right, title and interest that she had in said land.

During the trial of this cause, appellee testified that her brother, Mr. Edgar Sealey, was her duly authorized agent in the handling of this property and that he had full authority to represent her and to act for her in connection with said property, and the appellant testified, and his testimony was not denied, that before he made any attempt to purchase the title to this land from the Corinth State Bank, the purchaser at the sale for the 1930 taxes, in whom we contend this title had ripened by virtue of that sale, he went to Mr. Sealey, the agent of the appellee, and made known to him his intentions in the matter of the purchase of this land, and told him that he would not make the purchase if his sister, the appellee, objected or desired to make any effort to redeem or repurchase the land, and that he was told by Mr. Sealey, the agent, to go ahead and buy the land if he desired to do so, that his sister, the appellee, was not going to make any effort to keep it.

It appears to me that under the rule announced in the case of Kelso v....