Land Com'r v. Hutton

• Decision Date: 09 December 1974
• Docket Number: No. 48168,48168
• Citation: 307 So.2d 415
• Parties: The LAND COMMISSIONER and the Attorney General of the State of Mississippi v. James B. HUTTON, Jr.
• Court: Mississippi Supreme Court

Page 415

307 So.2d 415

The LAND COMMISSIONER and the Attorney General of the State of Mississippi v. James B. HUTTON, Jr.

No. 48168.

Supreme Court of Mississippi.

Dec. 9, 1974.

Rehearing En Banc Denied Feb. 3, 1975.

A. F. Summer, Atty. Gen., by Mary Libby Payne, Asst. Atty. Gen., Jackson, for appellants.

James B. Hutton, Jr., Alexandria, Va., for appellee.

INZER, Justice:

This is an appeal by the State Land Commissioner and the Attorney General of the State of Mississippi in their official capacity as representatives of the State from a decree of the Chancery Court of the First Judicial District of Hinds County quieting and confirming in appellee title to a tract of land containing approximately 0.4 acre located in Lot 3, Block A, East Jackson. We reverse and render.

James B. Hutton, Jr., individually and in his capacity as trustee for Mrs. Frank McCutcheon, Mrs. Russ Johnson and Mrs. Thomas Smith, filed this suit against the State of Mississippi to quiet and confirm title to a 70 foot lot fronting on the east side of North Street in the City of Jackson. The petition charged that Mrs. Rosaline Gwin Hutton, mother of petitioners and through whom they claim title, purchased a 99 year leasehold interest in the lot on January 9, 1909, and that thereafter on October 15, 1919, acquired there reversionary interest of the State in said lot by virtue of land patent No. 14,182 issued by the Land Commissioner and the Governor. The petition further charged that the decision of this Court in Huber v. Freret, 138 Miss. 238, 103 So. 3 (1925), holding that the Land Commissioner had no authority to issue land patents to land located in cities, cast a cloud on the title of petitioner. Petitioners prayed that the court decree the patent issued to Mrs. Rosa Hutton on October 15, 1919, to be valid and that the title to the lot in question be confirmed in them in fee simple.

The Land Commissioner and the Attorney General answered the petition and admitted the issuance of patent No. 14,182 but denied that it was a valid patent and alleged that it was void due to the fact that the Land Commissioner had no authority to sell seat of government land of which this lot was a part. It was also charged that under the ruling in Huber v. Freret, supra, the Land Commissioner was without authority to convey urban residential property which had been surveyed and divided into lots and blocks. The answer further charged that the consideration of $1.00 recited in the patent was so inadequate that it amounted to a donation of state property in violation of the Constitution.

The record in this case shows that the lot in question was a part of two sections of land ceded to the State of Mississippi in 1819 by the United States for a seat of government. By Chapter LXII, Laws of 1875, the legislature directed the Secretary of State to have surveyed and divided into suitable building lots of not more than one acre all lands belonging to the State and lying within the corporate limits of the City of Jackson which were not excepted from the Act and which had not been appropriated. The Act authorized the leasing of the lots so surveyed for a term of 99 years. In December 1875 the lot in question was leased to R. A. Belch. On January 9, 1909, Mrs. Rosa G. Hutton acquired title to the unexpired leasehold interest in the lot for a stated consideration of $4,000. Thereafter Mrs. Hutton applied for and on October 15, 1919, acquired patent No. 14,182 to the lot in question. The patent was signed by the Land Commissioner and the Governor and recited the consideration 'of the premises and $1.' The patent also recited that it was issued under the authority of Chapter 77, Section 2919, Code of 1906. The above section was the codification of Chapter 78, Laws of 1892, which established the office of Land Commissioner and provided for the sale of state land.

At the time Mrs. Hutton purchased the leasehold interest in the property for $4,000 there was a two story frame house on the lot. This house was rented and used as a boarding house. The leasehold interest at that time was and had been assessed for years for taxes on the same basis as property owned in fee simple. After the patent was issued to Mrs. Hutton the property continued to be assessed on the same basis as it was prior to the purchase. In 1925 this Court construed Chapter 78, Laws of 1892, as codified in the 1906 Code in Huber v. Freret, supra. In so doing this Court held that the Land Commissioner was not granted the authority to sell urban business property that had been surveyed and divided into lots and blocks. This case was followed by Jenkins v. Bernard, 148 Miss. 293, 114 So. 488 (1927). This case extended the rule announced in Huber to cover urban residential property that had been surveyed into lots and blocks. In fact, the Court stated:

(U)rban property surveyed and mapped into the usual subdivisions is conclusively presumed to have a value above that of rural property.

(148 Miss. at 299, 114 So. at 488)

Prior to the decision in Jenkins, the legislature, recognizing the validity and the effect of the Huber decision, enacted House Bill No. 16, Chapter 185, Laws of 1926, which provided among other things that the Land Commissioner should have authority to sell land situated within municipalities which had once been patented by the United States Government or the State of Mississippi. It further provided that should the title to such land thereafter become vested in the State of Mississippi by escheat, tax sale or otherwise, it should be sold by the Land Commissioner by and with the written approval of the Governor, as provided in the Act, even though it may have been subdivided into lots, blocks, divisions or otherwise.

Section 2 of the Act reads as follows:

Sec. 2. All sales of such lands situated within municipalities, which lands have heretofore escheated to or title thereto become vested in the state, and which have been sold by the land commissioner of the state at a fair and reasonable price not less than that prescribed for the swamp and overflowed lands, may be conveyed to the original holder of the patents, or if he has sold same to his vendee at such reasonable price as the state land commissioner, the governor, and the attorney general shall fix, and such purchaser shall be allowed as credit on such price the amount heretofore paid therefor, with six per cent (6%) interest, compounded annually, on the same, not to exceed the present value as fixed by such officers. And no land heretofore sold, or attempted to be sold shall be sold until notice by registered mail is given to the original buyer, or his vendee, if his post office address is known, and within a period of thirty days after the mailing of such notice. Such notice shall inform such buyer or his vendee of his rights hereunder. Whenever the post office address of such person is not known, notice shall be published in a newspaper published at Jackson, Mississippi, the capital of the state, giving a description of such land for a period of two weeks, and of the right of such buyers, or their vendees. No deed shall be made to such buyer or his vendee until such person shall make affidavit that he bought the same in good faith and has not since sold his interest therein. Provided nothing in this act shall be construed to in any wise affect any litigation now pending with reference to or concerning any land in which the state may have or claim title.

In 1936 the legislature enacted House Bill 275, Chapter 174, Laws of 1936, revising many of the statutory provisions relative to land belonging to the state. However, it specifically authorized the land commissioner to sell lands in municipalities to which the State had title at such price and under such terms and conditions as the Land Commissioner with the approval of the Governor might fix, even though it may have been subdivided in lots, blocks and divisions or otherwise and even though said lands were sold to the State by such description. This act also brought forward Section 2 of the 1926 Act in all material particulars.

It was the purpose of Section 2 of the 1926 Act and the provision in the 1936 Act to allow the people whose patents had been invalidated by our decision in Huber, Jenkins and other cases that followed them to obtain valid patents by so applying, giving credit for the amount paid for the invalid patent. It is not contended that Mrs. Hutton took advantage of the remedial provisions of these acts.

The State contended in the trial court and contends here, among other things, that our decision in Huber and Jenkins controls and that the patent issued to Mrs. Hutton was void. Appellee contended in the trial court and contends here that the Huber decision was obiter dictum and is not a rule of law within the doctrine of stare decisis. It is also contended that Huber and Jenkins should be overruled as wrongfully decided and mischievous. The Chancellor in confirming the title to the lots in appellees did not attempt to modify or overrule Huber, but based his opinion on our decision in State v. Stockett, 249 So.2d 388 (Miss.1971), wherein we held that in neither Huber nor Jenkins did this Court hold that lands encompassed within the boundaries of a municipality laid off in lots and blocks could not under any conceivable circumstances or for any consideration be sold by the State. It was apparently the opinion of the chancellor that the lot in question was not of the character dealt with in Huber and therefore it was not comparable in value to the land facing Capitol Street as in the Huber case. The chancellor pointed out that the lot in question was on a steep hill which required the back of the house to be built on stilts to maintain the floor level and in addition some property to the rear was occupied by people of the black race. It was on this basis that the chancellor held that the patent issued to Mrs. Hutton was valid.

The facts in the case before us...