Jordan v. W. C. Griffin Land Co.
| Decision Date | 01 October 1923 |
| Docket Number | 23391 |
| Citation | 97 So. 513,133 Miss. 78 |
| Court | Mississippi Supreme Court |
| Parties | JORDAN v. W. C. GRIFFIN LAND CO |
(Division B.) January 1, 1920
EVIDENCE. Surrounding facts admissible to show error, where tract book and patent conflict as to lands conveyed.
In a contest affecting titles to lands derived through the state where one party introduces entries on a tract book made by the secretary of state under the acts with reference to swamp and overflowed lands, to show a grant from the state, and where the other offers the original patent executed by the governor and secretary of state to such entryman, and these records are conflicting and contradictory, the court may receive in evidence and consider all the surrounding facts existing at the time, if available and from all the evidence so introduced may determine where the mistake or error was made. The facts in evidence in the present case considered, and show that the error was made by the secretary of state in making the entries on the tract book, and that the patent shows the correct land granted by the state.
HON. V A. GRIFFITH, Chancellor.
APPEAL from chancery court of Forrest county, HON. V. A. GRIFFITH, Chancellor.
Suit by the W. C. Griffin Land Company against F. H. Jordan. Decree for complainant, and defendant appeals. Reversed and dismissed.
Judgment reversed, and bill dismissed.
D. E. and C. W. Sullivan and Davis & Hathorn, for appellant.
A certified copy of the tract book and a certified copy of the patent were introduced in evidence and were in hopeless conflict as to the Southeast quarted of section 7, township 2, north, range 13, West. The chancellor adopted the certified copy of the tract book as the evidence of the title, and ignored the patent, and made the statement that in his opinion, if the entry and location were validly made, it was a matter of indifference as to whether any patent was ever issued or not. This would certainly be true if the patent had not been issued and offered in evidence at the trial. This would certainly be true, both under the statute, section 1961 of the Code of 1906, and the ruling of the court in the case of Boddie v. Pardee, 74 Miss. 13, if no evidence to show title had been introduced at the hearing except the certified copy of the entry in the tract book, but of course, this was not the case. The question is now presented to the court whether the entries on the tract book showing that the Southeast quarter of section 7, township 2, North, range 13, west, was patented to J. P. Carter, December 5, 1866, would prevail over the recitals in the patent issued to J. P. Carter, dated December 5, 1866, conveying to him all the land mentioned in the tract book, except said Southeast quarter.
We contend first, that the patent will prevail over the entry on the tract book as a matter of law, and, second, that the patent should prevail over the tract book under the facts of record in this case.
On the first proposition, we call the court's attention to the fact that section 4, chapter 14, of the Laws of 1852, approved March 16, makes it the duty of the secretary of state, under the direction of the governor to issue scrip for swamp land in the different counties in which they lie, under certain regulations, and that the script should be governed in all respects by the provisions of the 12th, 13th, 14th, 15th, and 16th sections of chapter 16, Laws of 1852, approved March 15th.
Section 16 of chapter 8, Laws of 1854, approved March 2, 1854, provides that the secretary of state in issuing scrip shall be governed by the fourth section of the Act of March 16, 1852, providing for the reclamation of swamp and overflowed lands, etc. We have already seen that section four of this last-mentioned act refers to sections 12, 13, 14, 15, and 16 of chapter 16, approved March 15, 1852, and that section 15 of this act requires the issuance of patents.
That section 1961 of the Code of 1906 is merely a rule of evidence adopted by the legislature is manifest from the holding of the supreme court in the case of Holloway v. Miles, 110 Miss. 532, 70 So. 697.
When the tract book and the patent are in harmony, then either or both may be introduced as evidence of title, but when they conflict, as they do in the case at bar, then the patent should prevail over the tract book, because its execution is a much more solemn official act than the entries on the tract book.
The bill of complaint clearly put before the court for decision the question of whether the omission from the patent of the Southeast quarter of section 7, township 2, north, range 13, West, was a mistake and oversight, and, of course, if such omission was not an oversight or mistake, then it was not intended to convey this land to J. P. Carter, and he did not become the equitable owner by its inclusion in the tract book, but such inclusion in the tract book was a mistake and oversight and the land commissioner was justified in striking it from the tract book and issuing the patent to Mrs. Alleen Camp Hathorn.
There was no other question presented to the court by the pleadings for its decision.
The only title of any kind that J. P. Carter could have obtained from the state was through the patent, and, as already shown, the patent did not include the Southeast quarter of section 7, township 2, North, range 13, West. The title to this subdivision of land, both equitable and legal, was clearly left in the state of Mississippi, and, therefore, the patent from the state to Aline Camp Hathorn to the Southeast quarter of section 7, township 2, North, range 13, West, executed in 1920, vested the legal title in her, and her deed to appellant Jordan vested the legal title in him, and the decree should have been for the appellant. But the chancellor stated in his opinion that a substantial compliance with the law requiring the land to be endorsed upon the warrants was had when the warrants were sent in to the secretary of state, as was shown by the evidence, and that it was the intention of the legislature in enacting that section of the law to provide a scheme of convenience for the operation of the land department. The legislature must have meant something more than the providing of a scheme for convenience in the operation of the land department when it required that the land selected should be endorsed upon the warrant, and the date of the location of the land and the number of the warrant should be entered upon a record by the secretary of state, kept by him for that purpose. The facts of this case illustrate the necessity for complying with the provisions of this law.
The failure to endorse the description of the land on the warrants and the failure to enter upon the tract book the date of the entries and the number of the warrants made this tract book so incomplete that it is not evidence of the entry of this land by J. P. Carter, and especially is this true when the completed patent is offered in evidence, showing this land was not conveyed to J. P. Carter. This is the document about which the chancellor was speaking in his opinion. In this connection see Burroughs Land Co. v. Murphy, 95 So. 515; Becker v. Columbia Bank, 112 Miss. 819, 73 So. 798; Hardy v. Hartman, 65 Miss. 505, 32 Cyc. 925.
White & Ford, for appellee.
The state recognized the lands as having been patented to Carter in 1866 up to July, 1920, and during that time collected taxes, except for one or two years when it appears to have been assessed as vacant. No attempt was made by the state to impeach or attack the title thus acquired by Carter. The land commissioner's attention was called (doubtless by Mr. Hathorn) to the fact that the Carter patent as issued did not cover the Southeast quarter. Thereupon, the land commissioner accepted an application to purchase by Mrs. Hathorn and a patent was accordingly issued. There is no question that the land warrants were regularly issued by A. B. Dilworth, secretary of state, nor that they were regularly sold by Myers, Lewis and Bradley, commissioners of Perry county, and that Carter was the lawful owner. There can be no doubt that the lands were granted to Perry county by the state of Mississippi for that is a matter of law.
In this state of facts, the chancellor found, first, that complainant was entitled to a decree because the tract book entry showed that the land in controversy had been patented to Carter, complainant's predecessor in title, and, secondly, he found as a matter of fact that the Southeast quarter had been located upon by Carter, and that he was entitled to a patent. In this finding, we submit that the court was abundantly correct. The chancellor in his decision called attention to section 1961, Code of 1906. On that section there appear to be two court decisions: Boddie v. Pardee, 74 Miss. 13, where the party claiming the land was able to show only a tract book entry, the court holding that this was insufficient, and Halloway v. Miles, 110 Miss. 532, where the party claiming the land introduced a certificate of entry from the United States Land Office, and the tract book of original entries, and rested his case. Thereupon his adversary showed that at the time the entry was granted, the lands were school lands and therefore not the subject of an entry from the United States. The court therefore held that the entry was invalid, saying that section 1961 announced a rule of evidence, and that while the entry would make out a prima-facie title, it could be overthrown by proof of a superior or paramount title. This case did not overrule Boddie v. Pardee, but on the contrary is entirely in harmony with it.
Irrespective of section 1961, Code of 1906, which has already been discussed, we submit that complainant was entitled to a...
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