Lambert v. State, 37850

• Decision Date: 12 March 1951
• Docket Number: No. 37850,37850
• Citation: 211 Miss. 129,51 So.2d 201
• Parties: LAMBERT et al. v. STATE et al.
• Court: Mississippi Supreme Court

Page 201

51 So.2d 201

211 Miss. 129

LAMBERT et al. v. STATE et al.

No. 37850.

Supreme Court of Mississippi, Division B.

March 12, 1951.

L. A. Wyatt, Jackson, for appellants.

J. P. Coleman, Atty. Gen., John E. Stone, Asst. Atty. Gen., Patterson & Patterson, and E. A. Turnage, all of Monticello, Heidelberg & Roberts, Hattiesburg, for appellee.

ETHRIDGE, Commissioner.

This case involves the validity of an 1873 deed to a sixteenth (school land) section of land, and the application to it of the twenty-five year, adverse possession statute. In holding the deed valid and rendering the judgment for appellants, some analysis of the historical background of sales of sixteenth sections, as well as of the immediate facts and legal issues, is necessary. The action originated as a suit by J. E. Lambert and C. J. Burns, appellants here and complainants below, to remove as clouds on their titles the claims of the appellees to the Southwest Quarter of Section 16, Township 6 North, Range 10 East, Lawrence County, Mississippi. The defendants and appellees are the State of Mississippi, Lawrence County, the Superintendent of Education of Lawrence County, and the Humble Oil and Refining Company, which is claiming under an oil and gas lease from the County to these school lands.

Under the Act of Cession by the State of Georgia in 1802, ceding to the Union certain western territories of Georgia, the sixteenth section in each township was dedicated to the maintenance and support of its public schools. When Mississippi came into the Union in 1817, the Federal statutes and the Georgia Act of Cession operated to convey from Georgia to the State of Mississippi this right in sixteenth section school lands, as soon as the surveys were made and the sections designated. The legal title was vested in the State of Mississippi in trust for maintenance and support of the public schools of the inhabitants of each township. Jones v. Madison County, 1895, 72 Miss. 777, 18 So. 87; Gaines v. Nicholson, 1850, 9 How. 356, 13 L.Ed. 172; Cooper v. Roberts, 1855, 18 How. 173, 15 L.Ed. 338; Pace v. State, 1941, 191 Miss. 780, 4 So.2d 270; Pilgrim v. Neshoba County, 1949, 206 Miss. 703, 40 So.2d 598. Under Mississippi Constitution of 1869, Article 8, Sec. 6, there was no prohibition upon the alienation by the State of these sixteenth section lands.

In the absence of a state constitutional prohibition, such as was adopted in the 1890 Constitution and as now exists, this Court has held that the Legislature had authority to execute the trust for school purposes in its discretion. This is relevant here because the deed in issue was executed in 1873. At that time the method of the execution of the trust was for the decision of the Legislature. Illustrative of the scope of that power is Jones v. Madison County, supra, in which the Court, interpreting the 1850 Mississippi Leasing Act, upheld a state statute authorizing a lease of school lands without the consent of the inhabitants of the township. The power of the State to authorize sale of such lands prior to the 1890 Constitution was recognized in Foster v. Jefferson County, 1947, 202 Miss. 629, 32 So.2d 126, 568, and this seems to be the universal rule in other states also. 50 C.J., Public Lands, Secs. 179, 182-237. For general discussions of these school lands and funds, see Smith v. McCullen, 1943, 195 Miss. 34, 13 So.2d 319; City of Corinth v. Robertson, 1921, 125 Miss. 31, 87 So. 464; Vol. 2, Rowland, Mississippi (1907), p. 669; Vol. 1, ibid., p. 408; Kimbrough, Law of Waste in Mississippi Territory and State, 7 Miss. L.J. 234, 249 (1935); Percy H. Easom, Public School Legislation in Mississippi, 1860 to 1930 (1937), pp. 390-407, Unpublished Thesis, Mississippi State Law Library, Jackson, Miss.; U. S. v. State of Wyoming, 1947, 331 U.S. 440, 67 S.Ct. 1319, 91 L.Ed. 1590 (later legislation and developments as to school lands); U. S. v. Morrison, 1916, 240 U.S. 192, 36 S.Ct. 326, 60 L.Ed. 599; for final word on these lands, see Public Law 754, 80th Congress, 2nd Session, June 24, 1948 62 Stat. 596, 1948 U.S. Code Congressional Service, p. 610 (ratification of treaty with Choctaw and Chickasaw Nations).

In 1870 the Mississippi Legislature adopted a comprehensive statute dealing with the sale and lease of sixteenth section lands. Miss.Laws 1870, Ch. 1, p. 1, enacted July 4, 1870. These statutes were reenacted on May 12, 1871, and appeared as Secs. 2015-2021 of the Mississippi Code of 1871. Secs. 2015-2019 provided in part as follows:

'Sec. 2015. The school directors of each district are hereby authorized to ascertain the will of the qualified electors of any township in the county, to which may belong any lands heretofore granted, and especially reserved and appropriated for the use of the schools in each township, as to whether or not such lands shall be sold; and to this end, they may order an election, to be held in the township, and they shall give at least thirty days' noice of such election, stating the object of the election, and the time and place of holding the same; said notice shall be posted in at east five of the most public places in the township. Said election shall be held in the usual manner of holding elections; which election shall be held, and the votes received by three commissioners, appointed by the county board of school directors; upon each ballot shall be written or printed the words 'for sale', or 'against sale'; and if a majority of the votes casts shall be 'for sale' the commissioners shall forthwith report the vote thus taken to the board of directors; and said lands shall be sold by the school directors, at public auction, at the county court house door, or by an auctioneer employed by them, at their expense, to the highest bidder in quantities of not more than eighty acres.

'Sec. 2016. It shall be the duty of the board of school directors, to notify the county board of supervisors of such order of sale of said land; and said board of supervisors shall thereupon appoint three intelligent freeholders of the township, to which such lands belong, who are in no way interested in the sale of said lands, as a board of appraisers; and the board thus appointed shall take an oath, or affidavit, to faithfully perform the duties of their office; and said board of appraisers shall submit a report to the board of supervisors, and to the board of scool directors, of their appraisement of said school lands.

'Sec. 2017. The board of school directors shall, before making such sale, cause public notice to be given, for at least six weeks before the time fixed for such sale, of the time, place and terms of making the sale, which said notice shall be by publication, in not less than one newspaper published in the county; * * *.

'Sec. 2018. In no case shall the lands be sold for less than the minimum sum fixed by the board of appraisers, and upon the following terms, to-wit: cash payment in full at the time of the sale, or a credit of five years; and in all cases of sales made upon credit, ten per cent. of the gross amount shall be paid in cash, and the balance in four annual installments, the interest upon which shall be paid annually, at the rate of ten per cent. per annum. The notes shall be made payable to the county board of school directors, secured by special mortgage on the lands sold, and by personal security in solido, until final payment of principal and interest. In case any purchaser or purchasers, shall neglect or refuse to pay any of the installments or interest at maturity the mortgage shall be foreclosed, and the school directors shall sell the land, as herein provided.

'Sec. 2019. The school directors are hereby authorized and required to execute all conveyances, on behalf of the township, for any lands sold as herein provided, and to receive cash payments and notes given for the payment of such land.'

These statutes remained in effect until March 5, 1878, when they were repealed by Miss.Laws 1878, Chap. 14, Sec. 64, p. 114. After the aforesaid Act of 1878, there was no express authority to sell sixteenth section lands, but this power to sell and convey such lands existed from 1871 to 1878 under the aforesaid statutes. Foster v. Jefferson County, 1947, 202 Miss. 629, 32 So.2d 126, 568. The present Mississippi Constitution of 1890, Sec. 211, provides that 'Sixteenth Section lands reserved for the support of township schools shall not be sold * * *.'

The sixteenth section school lands, which are involved in this case, were sold on January 6, 1873, under the provisions of the Code of 1871. The deed, excluding the acknowledgment, provided as follows: 'This official Deed of Conveyance made this the 6th day of January A D 1873, from C. C. Eivers President & J. D. Boozer, A. A. Sheppard, E. O. Cowart, H. H. Smith & A. Hartzog, members of the Board of School Directors of the County of Lawrence & State of Mississippi, to Mary Ann Muse of County and State aforesaid Witnesseth, That Whereas in pursuance of the Statute in such cases made & provided an Election was on the 28th day of September A D 1871 held in Township Six, North, of Range Ten East, in said County & State, to ascertain the will of the qualified voters of said Township as to selling the 16th Section of Land in said Township, appropriated to school purposes & the said Election reslting in a majority vote for sale: & whereas the said Board of School Directors appointed appraisers to value said 16th. Section & whereas the time place and terms of sale of said 16th Section were published six weeks as the law directs in the Monticello Advocate a public Newspaper published in said Lawrence County and whereas on the 1st. day of July A D 1872, said 16th. section was at the Court house door in the Town of Monticello by Subdivisions as the Law directs exposed to sale at public auction to the highest bidder on the following terms viz: Ten per Centum of the gross amount cash, and the balance in four annual...