Leavenworth v. Reeves

• Decision Date: 16 March 1914
• Docket Number: 16261
• Citation: 64 So. 660,106 Miss. 722
• Court: Mississippi Supreme Court
• Parties: J. H. LEAVENWORTH v. W. D. REEVES

64 So. 660

106 Miss. 722

J. H. LEAVENWORTH v. W. D. REEVES

No. 16261

Supreme Court of Mississippi

March 16, 1914

APPEAL from the chancery court of Coahoma county, HON. M. E. DENTON Chancellor.

Bill by J. H. Leavenworth against W. D. Reeves. From a decree dismissing the bill, complainant appeals.

The facts are fully stated in the opinion of the court.

Decree reversed.

Maynard & Fitzgerald and Tim E. Cooper, attorneys for appellant.

D. A Scott, A. D. Sommerville and E. M. Yerger, attorneys for appellee.

Argued orally by Tim E. Cooper, for appellant and D. A. Scott, for appellee.

OPINION

SMITH, C. J.

Appellant filed his bill in the court below, claiming to be the owner of the land here in controversy, and alleging that appellee was engaged in cutting timber thereon, claiming the right so to do by virtue of a contract entered into by him with O. H Johnson Hunting Club, which club also claimed the ownership of the land, and prayed that this contract be canceled as a cloud upon appellant's title, and appellee be enjoined from cutting the timber. From a decree dismissing this bill and dissolving the temporary injunction that had been granted thereon, this appeal is taken.

Appellant, by his evidence, disclosed a perfect record title to the property, and the attempt on the part of appellee is to establish title in the hunting club by adverse possession. In 1899, and for a number of years prior thereto, the land was owned by the state, having been acquired by it under various tax sales. In April and May of that year it was purchased from the state by Jeff Perkins and E. J. Sawyer with money furnished by appellant; they taking the legal title to themselves in trust for him. They afterwards conveyed it to John Lanning, and Lanning conveyed it to appellant.

In 1896, while owned by the state, the land was erroneously placed upon the assessment roll, and the person to whom it was assessed having failed to pay the taxes assessed thereon, it was, during the next year (1897) sold for the collection thereof to O. H. Johnson and others, who in 1900 sold it, along with other lands, to the hunting club. Appellee admits that this tax title is void, but claims that the club's title to the land has been perfected, both by reason of an actual occupancy of the land for more than three years, under section 3095 of the Code, and by reason of having been in adverse possession thereof for more than ten years.

Section 3095 has no application, for the reason that, as the land was owned by the state in 1896, it was not then subject to taxation. The defect in this tax deed does not arise by reason of the defective execution by the state's administrative officers of a power to assess and sell for taxes, but by reason of the fact that the legislature had not conferred, or attempted to confer, any such power upon them at all, and to such a defect this statute has no application. The case of Hoskins v. Railroad Co., 78 Miss. 768, 29 So. 518, 84 Am. St. Rep. 644, is conclusive of this proposition, and that case was not overruled by, and is not in conflict with, the case of Hamner v. Lumber Co., 100 Miss. 349, as was expressly stated in the opinion rendered therein at page 434, 56 So. 466.

The cases of Patterson v. Durfey, 68 Miss. 779, 9 So. 354; Carlisle v. Yoder, 69 Miss. 384, 12 So. 255, and Smith v. Leavenworth, 101 Miss. 238, 57 So. 803, relied on by appellee, are not in point. In Patterson v. Durfey, the averment of the bill simply was that the land was assessed to, not that it was owned by, the levee board; while in Carlisle v. Yoder it did appear that the land was owned by the levee board, still, it was subject to county and other local taxes, and the sale thereof was for the collection of both state and county taxes. In Smith v. Leavenworth, the land was assessed to, but was not owned by, the state. An examination of the facts of that case will disclose that the land was sold to the state for the taxes of 1876. This sale, however, was considered by the attorney-general and treated by the court as being defective, and therefore as conferring no title on the state. The land, however, was thereafter carried on the assessment roll as the property of the state until 1881. In 1880 the attorney-general directed that the land be stricken from the auditor's list and certified back to the county wherein the sale for taxes was made. In 1881, while the land still remained improperly assessed to the state, the tax collector sold it for the taxes claimed to be due thereon for 1880. This sale the court held to be void; but, the purchaser having been in possession of the land thereunder for more than three years, his title was held good under section 3095 of the Code. From this it appears that the land was subject to taxation in 1880, and therefore could have been assessed and sold for the taxes of that year, so that the defect in the sale therefore arose, not by reason of the lack of power in the state's administrative officers to assess and sell, but by reason of the defective execution of a power so to do. The land was simply erroneously assessed.

Smith v. Leavenworth is supported by both Patterson v. Durfey and Carlisle v. Yoder; and, while it is true that in Hoskins v. Railroad Company it was said that these cases, "so far as they are in conflict with this opinion, are overruled," an examination of them will disclose that they are not in conflict therewith. This is made clear by the language of one of the counsel for appellant in the case of Hamner v. Lumber Company, 100 Miss. 349, as will appear from his brief on page 367, 56 So. 466, on page 472. This language is as follows: "Now, it is manifest that all that was said in Hoskins v. I. C. R. R. Company related to the non liability of the land to taxation, and the rule laid down was that the statute had no application where the land could not be taxed. Judge TERRAL, proceeding, stated that there was no difference between the ownership of land by the Federal government and by the state or levee board or other municipal authorities, if the land in their hands was nontaxable. He evidently meant to say that the cases of Patterson v. Durfey and Carlisle v. Yoder were overruled only in so far as they conflicted with the rule thus announced. Now, as matter of fact, it is easy to show that there is no conflict between Hoskins v. Railroad Co., on the one side, and Patterson v. Durfey and Carlisle v. Yoder, on the other. In Patterson v. Durfey it was not averred that the lands were owned by the levee board. It was only averred that they were assessed to the levee board, which might very well have been true, and yet they may not have been owned by the board. But in Carlisle v. Yoder it does distinctly appear that the lands were owned by the levee board. Now, lands owned by the levee board were not exempt from taxation. They were exempt from state taxes, but they were liable to county taxes and other local taxes. They were sold both for the state and county taxes, and, of course, the sale was void if it had been attacked; but it was not attacked, and the purchasers were permitted to remain in possession. Here was default on the part of the former owner. His lands were liable to a part of the taxes for which they had been sold, and he sat by and permitted the purchaser to remain in possession. The language of Judge TERRAL in Hoskins v. Railroad Co. makes it clear that what he had in mind was a sale of lands which were not liable to taxation at all. He expressly says that section 2735 applies to sales of lands that are taxable and salable, and in which there is some defect in the proceeding relating to the assessment or sale; and he says in such cases the owner, knowing his land to be taxable, ought to be on his guard against their loss by any negligence of his own."

The facts upon which the club's claim of title by adverse possession is based are about as follows: The deed from Johnson and others to the club, executed in 1900, conveyed in addition to the land in controversy, a large body of other land, all of which is wild land, not suitable for agricultural purposes, and is valuable only for the timber thereon, and for use as a game preserve. The club, as its name imports, is an association formed for the purpose of providing its members with facilities for hunting game. In order to accomplish this purpose, the club, immediately after the execution to it of the deed from Johnson and others, built a hunting lodge on a portion of the land, to which its title is valid, some distance from the land in controversy, which lodge has since been...