Key v. Wise, 77-2986

Citation629 F.2d 1049
Decision Date05 November 1980
Docket NumberNo. 77-2986,77-2986
PartiesAlf KEY et al., Plaintiffs-Appellants, v. Mrs. Louise P. WISE et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

C. M. Murphy, Memphis, Tenn., for plaintiffs-appellants.

Walter R. Bridgforth, Yazoo City, Miss., Vardaman S. Dunn, Jackson, Miss., H. M. Ray, U. S. Atty., Oxford, Miss., Falton Mason, Jr., Asst. U. S. Atty., James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Carl Strass, Atty., Appellate Sec., Dirk D. Snell, Washington, D. C., Raymond N. Zagone, Nancy B. Firestone, Dept. of Justice, Land & Natural Resources Div., Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BROWN, HILL and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This case involves title to 451 acres of land located in Humphreys County, Mississippi. Known to residents of the area as "The Point," the property is bounded on the east by Tchula Lake, a long and narrow body of water, and on the south by a meander in the Yazoo River. Appellants are descendants of Alf Key and Carrie Cook Key, who first entered into possession of the land in 1886. In February of that year, Alf Key purchased a part of the land now in dispute from Henry Powell for $1,000, and recorded the deed. In October 1912, he purchased the remainder of the disputed land from Annie Swisher for $3,000, also recording the deed. Members of the Key family occupied and farmed the land continuously until the 1969 crop was in. Alf and Carrie Cook Key had five children, all of whom were born and raised on the property. After Alf Key died in 1924, his property passed by intestate succession to his five children and his wife. One of his sons, Tom Key, remained on and farmed the property through 1969.

Beginning about 1890, certain ancestors of Appellees (the Wises), known on this record as the "Wise Brothers," began lending "furnish money" to the Keys, taking deeds of trust on the property as security. Furnish money is money used to buy seed and other farm supplies at the beginning of each farming season, and it is normally repaid out of the proceeds of the season's crop. The deeds of trust apparently secured other obligations of the Keys to the Wises in addition to the annual furnish, although the nature of those obligations does not appear from the record.

In 1932, the property was sold for delinquent taxes to an employee and relative of the Wise Brothers, who took title in 1934 and immediately reconveyed the property to the Wise Brothers. The conveyance was recorded, but the Mississippi courts apparently viewed the tax sale and the subsequent conveyances as void, see n.2, infra.

Late in 1969, a terminal illness forced Tom Key to leave the farm and move into town where he could receive care. About this time certain of the Wises executed and recorded deeds purporting to convey some interest in the property to other family members. At about the time of Tom Key's death in 1970, the Wises claimed possession of the land and began renting it to others. After Tom Key died in 1970, several members of the Key family living in Mississippi executed quitclaim deeds conveying whatever interest they had in the property to other Key family members who were nonresidents of the state. These deeds were recorded. In July 1972, the Keys filed this action in the United States District Court for the Northern District of Mississippi seeking a declaration of their rights in the disputed land and relying upon diversity jurisdiction. The complaint named as defendants members of the Wise family and the United States. The United States had an interest in the property because in 1961 and again in 1963 it had acquired perpetual easements from the Wises for the purpose of constructing a levee across the property.

Both the Wises and the United States filed motions to dismiss the complaint, challenging the subject matter jurisdiction of the district court. The Wises' motion alleged that complete diversity of the parties was lacking and that the United States had not consented to suits of this nature against it. The United States' motion argued that the United States had not consented to suits against it when the United States claimed a title interest, as opposed to a lien interest, in real property; and that if the action was being brought under the Tucker Act, it was barred by the applicable six-year statute of limitations. Less than a month before a hearing on those motions was held, however, Congress enacted 28 U.S.C. § 2409a and 28 U.S.C. § 1346(f). Act of October 25, 1972, Pub.L.No. 92-562, § 216, 86 Stat. 1176 (amending 28 U.S.C. §§ 1346, 1402 and adding 28 U.S.C. § 2409a). Section 2409a 1 contains a waiver of the Government's sovereign immunity in suits to quiet title to land in which the United States claims an interest, and section 1346(f) provides: "The district court shall have exclusive original jurisdiction of civil actions under Section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States" (emphasis added). The hearing was held on November 21, 1972, at which time the Act of October 25, 1972 was brought to the court's attention, although the complaint was not formally amended to rely thereon at that time. At the conclusion of the hearing, during which a representative of the Government read the new Act to the court over the telephone, the court noted that it had jurisdiction of the case, but abstained because a decision on the merits of the case would involve only state law issues. The court said: "The Court further finds, however, that this action, seeking, as it does, the adjudication of conflicting claims to the ownership of an interest in land, involves no federal questions on its merits but does involve uncertain and complex state land law issues which should be settled by state courts in the particular circumstances of this case and that this Court should abstain from exercising jurisdiction pending the settlement of the state issues in the appropriate state forum and that further proceedings herein should be suspended." Thus, the court did not dismiss the federal case, but retained jurisdiction pending the outcome of a state court suit, not then instituted, that would decide the issues of state property law. The Keys moved in the district court for reconsideration of the order of abstention, formally amending their complaint to rely on the jurisdictional provision of 28 U.S.C. § 1346(f) and the waiver of sovereign immunity in 28 U.S.C. § 2409a. The motion was denied, and the Keys appealed to this court. The appeal was dismissed without opinion.

In the meantime and in accordance with the suggestion of the district court, the Wises brought an action in the Chancery Court of Humphreys County, a Mississippi state court, to cancel as clouds on their asserted title the quitclaim deeds recorded by the Keys in 1970 and to adjudicate the Wises to be the true owners of the property on the basis of adverse possession. The Wises asserted two grounds for their claim to the land. One ground was that Tom Key had never repaid the debt secured by a 1931 deed of trust, which pledged the property and all the livestock, farming implements, and crops owned by Tom Key in that year. The Wises claimed that, as a consequence, their predecessors in title entered the land as "mortgagees in possession after condition broken" in 1932. Thereafter, the Wises contended, the Wise Brothers rented the property to Tom Key and he attorned to them as a tenant on the property. The Wises argued that Tom Key's tenancy was possession of the property for their benefit and adverse to the interest of the Keys (Tom Key and the other Key family members who were cotenants by virtue of Alf Key's intestate death in 1924).

The other ground upon which the Wises based their claim to the property was that they have claimed full right and title to the land since 1934 under a deed from Louis Fischer, an employee of the Wise Brothers partnership and a son of one of the partners at that time. That conveyance came about in the following manner. In 1932 the disputed property was sold to satisfy delinquent taxes at an annual Humphreys County sheriff's tax sale. Mr. Fischer purchased the property at that sale for $143.48. The Keys did not redeem the property by paying the delinquent taxes within two years, as permitted by Mississippi law, and on September 20, 1934 a tax deed was delivered to Mr. Fischer. The following month, Mr Fischer conveyed the property to the Wise Brothers for $500. Apparently the tax sale was invalid, however, because of the failure of the President of the Humphreys County Board of Supervisors to sign the minutes of the meeting at which taxes were equalized in Humphreys County in 1931. 2 Nonetheless, the Wises claimed that after 1934, if not before, Tom Key recognized the Wise Brothers as the true owners of the property and occupied and farmed the land thereafter as their tenant with full knowledge of and acquiescence in their claim to ownership.

The case was tried in the state court in June 1973, and on September 12, 1974 the Chancellor filed his formal findings and final decree, awarding title to the Wises. 3 Pending on appeal to the Mississippi Supreme Court, the Keys petitioned this court in May 1976 for a writ of mandamus directing the federal district court to exercise its jurisdiction to hear the federal case. On May 24, 1976 this court denied the petition without opinion. The Keys then petitioned the United States Supreme Court for a writ of certiorari to review this court's denial of their petition for a writ of mandamus. Certiorari was denied without opinion on December 13, 1976. On February 2, 1977, the Mississippi Supreme Court affirmed the decision of the Chancery Court, Key v. Wise, 341 So.2d 1326 (Miss.1977). One of the assignments of error made by the Keys in their...

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