Jones v. Madison County

• Citation: 72 Miss. 777,18 So. 87
• Court: Mississippi Supreme Court
• Decision Date: 10 June 1895
• Parties: W. B. JONES v. MADISON COUNTY

18 So. 87

72 Miss. 777

W. B. JONES v. MADISON COUNTY

Supreme Court of Mississippi

June 10, 1895

FROM the chancery court of Madison county, HON. H. C. CONN Chancellor.

The facts are stated in the opinion.

The case was first argued and submitted at the October term, 1894 (Nugent & McWillie and W. H. Powell, for appellant; H. B Greaves and F. B. Prattt, for appellee). On this submission as the opinion states, counsel, in their briefs and arguments, and the court in its opinion, dealt with the cause upon the idea and theory that the validity of the lease in question was determinable under the act of February 24, 1842 (Hutch. Code, p. 222), and the court, acting on the concession of counsel as to this, delivered an opinion holding that the lease of 1851 to Shackleford was void because, by the terms of that statute, title could not vest in the purchaser or lessee until the whole of the purchase money was paid, and it was admitted that the purchase money for his lease had not all been paid by Shackleford. The court, therefore, affirmed the decree of the lower court holding the lease void.

Decree reversed and bill dismissed.

Nugent & McWillie, for appellant, filed the following suggestion of error to the opinion first rendered:

The agreed statement of facts recites that the lease was made in the manner and form required by law, and that the board of school trustees were properly constituted and authorized to lease said lands. Because of this stipulation, we took no note of the argument of appellee's counsel based upon the provisions of the act of 1842. In view of the agreement, we do not suppose the court will go into consideration of the feigned issue as to the validity of the lease. The lease to Shackleford was not made under Hutchinson's code, but under § 7 of "An act to reduce into one the several acts heretofore passed in relation to the sixteenth sections and common schools, so far as relates to Hinds county." Laws 1850, p. 133. This act, by § 28, was applied to Madison and Claiborne counties. As to these counties, all laws in relation to schools and school lands prior to 1848 were repealed. This act did not contain the provision of the act of 1842, that the title was not to pass to a lessee until complete payment, but, under § 8, notes given for the purchase money were to be a lien upon the land no matter how often they might be renewed. The seventh section of the act of 1850, which provides for renewing the purchase money notes, necessarily excludes the idea that the ordinary statute of limitations did not apply to them as to all other notes. See, also, Madison Co. v. Powell, 71 Miss 618. It matters not if the lease to Jones be void, since the county cannot go back on the lease made in 1851 to Shackleford.

The act of 1850 is not inoperative because of not providing for the consent of the inhabitants, of the township. The act of congress of May 19, 1852, authorized the sales of sixteenth sections, but contained the proviso that in no case should the lands be sold or leased, except by the consent of the inhabitants of the township, in such manner as the legislature might direct. The last section of the act provided that previous sales are ratified and approved in the same manner and to the same extent; as if the act had been in force at the time of the sales. It appears on the surface of this act that the consent of the inhabitants as to future sales was indispensable, but it is clearly apparent that this consent was to be obtained in such manner as the legislature might direct. It did not make, or intend to make, a condition precedent to the declaration by the legislature of such validity. Congress was dealing with a subject upon which the state had taken action, and with titles that had accrued under state laws that had been fairly and properly followed. It was the manifest purpose to concede the validity of the laws and sales under them as to past transactions, and provides for new sales or leases with the consent of the inhabitants. Otherwise, we would be met with a serious complication. To make every sale or lease dependent upon a previous consent, probably given, but of which no memorial had been preserved, would be to give a "serpent for a fish." Congress did not surely so intend. It was declared that sales previously made should be ratified and approved, not provided that they had been made with the consent of the inhabitants, but to the same extent and in the same manner as if the act of 1852 had been in force, and, necessarily, had been fully complied with. When the act of congress of 1852 was passed, our senators and representatives in congress must have been aware of the existence of the act of 1850 and of the doubt as to the state's right to dispose of the sixteenth section reservation, and, no doubt, procured the passage of the act to meet the exigency. It was undoubtedly the purpose to ratify and not invalidate past laws.

We again invoke the benefit of the stipulation of counsel that the lease was made in the manner and form required by law. The lease itself recites that the heads of families in said township instructed the board of trustees to lease the sixteenth section for ninety-nine years, and that, in obedience to such request, with the consent of the majority of two-thirds of the heads of families, the board leased the same. We take it that appellee, the county, is bound by its pleading quite as much as any other litigant. The cross bill charges the validity of the lease to Shackleford, and the answer fully admits it.

Brame & Alexander, for parties in interest, by leave of court, filed the following suggestion of error:

We are so thoroughly convinced that the decree of the lower court should be reversed that we avail of the courtesy extended to us by this court to present our views. As one result of our investigation, we find that our high court of errors and appeals does not seem to have given to the question of school lands and their tenure the thorough and exhaustive consideration they have received by other tribunals. The utterance of our court in Hester v. Crisler, 36 Miss. 681, to the effect that, prior to the act of congress of 1852, Mississippi had no legal or equitable title to these school lands, is not in accord with the views entertained by other courts, and we submit that it is not true, as therein held, that the right of the state, or of the inhabitants of the township, rests solely, or even mainly, on national grant.

Let us examine briefly the history of the legislation, national and state, relative to school lands. After the cession of the Northwestern Territory by the state of Virginia, pursuant to a resolution of congress to provide for the temporary organization thereof (Land Laws, 339), the ordinance for ascertaining the mode for the disposition of land in the Western Territory was passed May 20, 1785 (Land Laws, 349). In this ordinance we find the first evidence of a governmental policy to devote the sixteenth section in every new state to the maintenance of public schools. The ordinance for the government of the Northwestern Territory, passed July 13, 1787, made no specific reference to school lands, but by section 3 provided that "religion, morality, and knowledge being necessary to a good government and the happiness of mankind, schools and the means of education should be forever encouraged." At the same time, congress, in directing the treasury department to sell lands in said territory, provided for "lot No. 16 in each township, or fractional part of a township, to be given perpetually for the purposes contained in said ordinance," meaning the ordinance of 1785 (Land Laws, p. 362).

It is well known that the lands formed into Mississippi territory, and afterwards Mississippi state, belonged, originally, to Georgia. By the act of congress of April 7, 1798, "settling the limits of the state of Georgia, and establishing a government for the Mississippi territory," said territory was given all the rights and privileges which had been granted to the Northwestern Territory. The president was given the right to establish a government for the Mississippi territory "similar in all respects to that now exercised in the territory northwest of the Ohio" (Land Laws, p. 115). By an act supplemental to the foregoing, the right of Georgia to her reserved lands in the Mississippi territory was recognized and confirmed. By the very act of cession, it was distinctly provided that the lands should be formed into states, which should have and exercise the rights granted to the Northwest Territory. As we have seen, it was part of the law of that territory that the sixteenth sections should be devoted to school purposes. It is, therefore, not through any act of grace on the part of the United States that Mississippi now has her sixteenth sections. It was part of the compact between Georgia and the United States. The lands were not owned by the United States unconditionally, and reserved, or even with a new trust to the state. The granted, trust already existed, and all subsequent acts of the United States in reference to sixteenth sections are but a recognition of the trust created by that compact. The status of our school lands Was fixed by the act of cession, and neither congress nor the state legislature can change it.

By the act of congress of 1815, the leases by the agents of territory were to cease when the territory should be admitted as a state. This seems to have been in recognition of the fact that, the state, when formed, should succeed to the title and control of the lands. The act of 1817 admitting Mississippi into the union, provided that all waste or unappropriated lands should be given to the United States (Land Laws, p. 705). We have seen that the sixteenth sections...