Jonas v. Flanniken

• Decision Date: 08 February 1892
• Citation: 69 Miss. 577,11 So. 319
• Court: Mississippi Supreme Court
• Parties: S. A. JONAS ET AL. v. A. E. FLANNIKEN

11 So. 319

69 Miss. 577

S. A. JONAS ET AL. v. A. E. FLANNIKEN

Supreme Court of Mississippi

February 8, 1892

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Chancellor.

The bill in this case seeks a sale for partition of certain land in Monroe county, consisting of forty acres in section 27 and the adjoining forty acres in section 26, township 13, range 17. On the land in section 27 are situated certain mineral springs, known as Greenwood Springs, and a hotel and cottages to accommodate visitors. The original bill was filed February 23, 1887, by S. A. Jonas, R. E. Houston, L. E. Houston and R O. Reynolds, against Mrs. A. E. Flanniken and M. J. Wright and alleged that complainants owned, With right of possession, an undivided one-fourth of one-sixth interest in the land in section 27, and an undivided one-half interest in the land in section 26, and that Mrs. Flanniken claimed to be the owner of the remaining interests in both tracts, and that Wright was in possession of the land under a lease from her for a term of years. This lease expired pending the litigation, and need not be further mentioned.

The defendants filed a demurrer to the bill, which was overruled and Mrs. Flanniken answered, denying complainant's title and alleging her separate ownership in fee of both tracts of land.

No further steps seem to have been taken until June 19, 1889, when an amended bill was filed. R. O. Reynolds, in the meantime, had died, and Mrs. S. B. Reynolds was his sole legatee, and, as such, joined in the amended bill.

After the original bill was filed, the complainants therein learned that many other persons claimed certain interests in the land, and these persons, to the number of fifteen, were joined as complainants in the amended bill, which was against the same defendants, and sought a sale for partition. Afterwards it was discovered by complainants that L. E. Houston and R. O. Reynolds, before the filing of the original bill, had conveyed their interest in the lands to one Howard, and that the title so conveyed had passed to the defendant, Mrs. Flanniken; and as to complainants, L. E. Houston and Mrs. S. B. Reynolds, the bill was dismissed, and they withdrew from the litigation.

It would be extremely difficult to state the history of the title claimed in the bill to have become vested in the several complainants. Both tracts of land Were entered originally by several persons jointly, and the undivided interests thus acquired have been, by successive conveyances and inheritance, vested in the complainants, who claim fractional interests varying in quantity from 1/3 to 1/288 interest in one or both tracts of land. However, it becomes unnecessary to set out the chain of title through which these parties claim, except so far as it may have connection with the title claimed by the defendant. It will be seen from the opinion that this court finds, from the record, that the title of the several complainants to section 27, even if originally good, has been lost, and that, as to the land in section 26, the complainants have shown a right to relief.

The history of defendant's tax-title to the land in section 27 is as follows: It was sold to the state, January 3, 1876, for the taxes of 1875, and the state's title was conveyed by the auditor to H. C. Mendenhall, May 23, 1878. Mendenhall conveyed it by quitclaim to J. W. Howard, April 5, 1879, and Howard conveyed it by quitclaim deed to Mrs. M. A. E. Jordan, June 20, 1879, who in 1882 conveyed it to defendant, Mrs. Flanniken. Thus, the tax-title acquired by Mendenhall May 23, 1878, became vested in Mrs. Flanniken.

Defendant likewise obtained a tax-title to the land in section 26. This was sold to the state, March 4, 1878, for the taxes of 1877, and was bought from the state, April 15, 1879, by R. O. Reynolds. The latter, jointly with L. E. Houston, had long before that acquired an interest in the lands in both section 26 and section 27 in the following manner: One J. D. McAlister originally owned or claimed an undivided one-sixth interest in the land in section 27, and this interest was purchased, May 14, 1869, by S. A. Jonas, R. E. Houston, R. O. Reynolds and L. E. Houston. These persons likewise obtained a conveyance of said fractional interest in 1870 from the sheriff, who had levied on the interest of J. D. McAlister in the forty acres in section 27, and sold the same. At the same time the sheriff conveyed another fractional interest therein to Mary C. McAlister and J. Mays jointly. Afterwards, in 1873, J. D. McAlister and Mary C. McAlister conveyed their interest in the land in section 27, and also a one-fourth interest in the land in section 26, to C. M. Jordan. Just how McAlister acquired title does not appear, but it is admitted that he and Mays built the hotel and erected other improvements on the land in 1869, and remained in possession that year, and that thereafter McAlister alone was in possession until the sale to C. M. Jordan.

On May 26, 1874, Mary C. McAlister, J. D. McAlister and C. M. Jordan and wife executed a deed of trust on their fractional interest in the land in section 26 and section 27 to Q. O. Eckford, trustee, to secure a debt due to L. E. Houston and R. O. Reynolds. Default having been made, Eckford, the trustee, foreclosed and conveyed said fractional interest in the land to R. O. Reynolds, by deed dated June 14, 1879. It will be remembered that R. O. Reynolds, on April 15, 1879, had acquired the state's title to the land in section 26, but previous to this, in 1869, Reynolds, jointly with L. E. Houston, R. E. Houston and S. A. Jonas, had purchased, and held a deed to, a half-interest in the land in section 26, from one Dillworth, who had derived his title from one of the original patentees. Thus, it will be seen that Reynolds, in addition to the tax-title, had acquired title to fractional interests in one or both tracts of land from several sources, namely: (1) under deed from Dillworth in 1869; (2) under the aforesaid conveyance from McAlister and wife, May 14, 1869; (3) by said sheriff's deed in 1870; (4) by the deed from Eckford, trustee, June 14, 1879.

On June 16, 1879, L. E. Houston and R. O. Reynolds executed a quitclaim deed of all their interests in the land in sections 26 and 27 to J. W. Howard, who conveyed the same by a like deed, June 20, 1879, to Mrs. M. A. E. Jordan, wife of the said C. M. Jordan, she being in possession at the time, and the title thus acquired was conveyed by Mrs. Jordan, in 1882, to the defendant, Mrs. Flanniken. At the same time R. O. Reynolds quitclaimed to Mrs. Flanniken his interest in the land in section 26, presumably for the purpose of removing any doubts or errors that might inhere in the other conveyances through which she had derived his title. Howard was never in possession of the land, but Mrs. Jordan, after her conveyance from Howard, remained in possession until it was surrendered to Mrs. Flanniken.

The deed from L. E. Houston and R. O. Reynolds did not purport to convey any particular interest, but was a quitclaim deed to both tracts of land; and it will be observed that the deed from Howard to Mrs. M. A. E. Jordan, defendant's grantor, was executed June 20, 1879, lacking but one day of being ten years before the filing of the amended bill.

It is contended by complainants that the tax-title to the land in section 27, relied on by the defendant, is void, because the assessment-roll had not been approved by the board of supervisors, and because the term of office of the sheriff and tax-collector who made the sale expired on the very day of the sale, being the day on which his successor qualified, land that he was without authority to sell. It was also urged that defendant could not set up the tax-titles to the land in section 27, because her vendor, Mrs. Jordan, was the wife of C. M. Jordan, who, being a co-tenant of the land, was disqualified by the tax-title; and that she was precluded from availing of the tax-title to the land in section 26, because R. O. Reynolds, who purchased from the state, was at the time likewise a co-tenant and mortgagee.

On the other hand, it is contended in behalf of the defendant, that, before the filing of the original or amended bill, she, and those under whom she claims, had been in open and adverse Possession for more than ten years; also, that complainants were precluded from attacking her title, based upon the sales for taxes, because of the provisions of § 1709 of the code of 1871, and § 539 of the code of 1880. The former statute provides that no suit shall be brought to invalidate any tax-title after three years from the time of sale; and the latter statute provides that actual occupation for three years, after one year from the day of sale, of any land held under a conveyance by a tax-collector, in pursuance of a sale for taxes, shall bar any suit to recover the land, or assail the title because of any defect in the sale of the land for taxes, or any precedent step to the sale.

The defendant also contends that complainants are estopped to assail her title, because, with knowledge of her purchase and claim, they permitted her to expend large sums in improving the property, without making known their adverse claim. There was some evidence tending to establish this fact.

Finally, she contends that when she acquired the title she was ignorant of any of the infirmities therein, growing out of the disability of Reynolds or Mrs. Jordan to acquire a tax-title because of their alleged co-tenancy of the land.

The decree of the court was in favor of the defendant and dismissed the bill, and from this decree complainants have appealed.

Decree reversed and cause remanded.

Houston & Reynolds, for appellants.

One tenant cannot, against his co-tenants,...