Louisville, New Orleans & Texas Railway Co. v. Buford

• Decision Date: 17 February 1896
• Citation: 73 Miss. 494,19 So. 584
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO. v. ALFRED BUFORD
• Court: Mississippi Supreme Court

19 So. 584

73 Miss. 494

LOUISVILLE, NEW ORLEANS & TEXAS RAILWAY CO. v. ALFRED BUFORD

Supreme Court of Mississippi

February 17, 1896

October 1895

FROM the chancery court of Bolivar county HON. A. H. LONGINO Chancellor.

This was a proceeding by the appellee, Buford, against the appellants, the Louisville, New Orleans & Texas Railway Co. and Abram Williams and William Lightfoot, to remove clouds upon his title to the southwest quarter of section 25 township 24, range 7, in Bolivar county. He set up the following by way of deraignment of title: On April 15, 1867 said land was sold to the "Ten Cent Levee Board" for levee taxes; that afterwards it was sold to the state for the taxes of 1871, and duly listed to the state, thereby coming within the terms of the act of April 11, 1876, which vested title thereto in the state; that, on November 5, 1874, one Jackman, who claimed to own it, conveyed it to J. P. Tobin & Co.; that, under a bill filed by the creditors of that firm, it was decreed to be sold, and was sold, on November 31, 1881, Charles Scott and F. A. Montgomery becoming the purchasers and receiving a deed from the commissioner; that, on March 6, 1882, it was sold to the state for the taxes of 1881, and, on March 12, 1883, was conveyed by the state to Charles Scott, whereby all the title of the state was alleged to have vested in Scott; that, on February 19, 1887, Scott and Montgomery conveyed it to complainant. Complainant also claimed to have title under the ten years statute of limitations, and the limitation of three years prescribed by § 539, code 1880, in cases of actual occupancy, which, he claimed, was had under the state's deed to Charles Scott.

The defendants answered, setting up that, on the proper day of a year not stated, the land was sold for taxes to the liquidating levee board, and was held by that board until October 3, 1881, when it was sold and conveyed by the commissioners in Green v. Gibbs, to the Memphis & Vicksburg Railroad Co., all of whose rights therein had passed to the defendants; that this was a paramount title, but, in addition thereto, the state claimed to own the land by virtue of a sale under the "abatement act" of March 1, 1875, and also claimed the same under the act of April 11, 1876, and that, on May 23, 1888, the auditor, under the provisions of the act of March 23, 1888, conveyed the land to the defendant railway company. They denied that Charles Scott's conveyance from the state vested any title in him, for the reason that he and Montgomery purchased the land at the sale, under the auditor's bill, as trustees for various creditors of J. P. Tobin & Co., and the sale operated as a redemption, in view of Scott's fiduciary character. They also plead, in bar of complainant's claim, actual adverse possession by Williams and Lightfoot, who were grantees of the defendant railway company for more than one year prior to institution of suit, relying on the act of March 2, 1888, to sustain their claim of a perfect and inexpugnable title, by reason of such occupancy. They made their answer a cross bill, and prayed that complainant's alleged title be canceled as a cloud upon their title, etc. In his answer to the cross bill, the appellee plead three years actual occupancy and the bar arising under § 539, code 1880; charged that Scott acquired, by his purchase in 1883, all the title vested in the state by the previous sales for taxes and legislation; denied that any of the defendants had been in possession or actual occupancy for one year prior to the institution of suit, and insisted that the defendants could not invoke the act of March, 1888, for the reason that the claim of the liquidating levee board had been barred by the ten years and three years statutes of limitations, prior to the passage of said act, etc. The nature of such parts of the evidence as it is material to consider, is sufficiently indicated in the opinion. The complainant was granted the relief prayed for, and defendants appealed.

Decree affirmed.

Charles Scott, for the appellants.

1. The sale to the state in 1882 was void because made under a so-called special assessment for Bolivar county, which was unsupported by any order of the board of supervisors directing it to be made. Acts of 1878, p. 330. Charles Scott even if that sale be treated as valid, acquired no title by his purchase in 1883, for, in view of his fiduciary character at the time, it operated as a redemption. McLaughlin v. Green, 48 Miss. 209; McGee v. Holmes, 63 Ib., 50; Cohea v. Hemingway, 71 Ib., 22. He and Montgomery only quitclaimed to the appellant as trustees, and any individual title that Scott may have had remained in him. Cohea v. Hemingway, supra. Scott's vendee stands in his shoes so far as his inability to assert title under the purchase in 1883 is concerned. McGee v. Holmes, supra.

2. The deed from the auditor to Scott in 1883 was void, because that officer did not exact payment of any accrued taxes save those of 1881 and 1882, which was contrary to the requirements of § 561, code of 1880. In default of payment of all accrued taxes from 1874 to 1882, the auditor could not convey the land, such payment being a condition precedent to the exercise of that power. McCulloch v. Stone, 64 Miss. 378; Murdock v. Chaffe, 67 Ib., 752; Wynne v. Stone, 69 Ib., 85. While the cases cited involved a purchase under the act of 1884, the principle is the same. In both the right of the auditor to convey was derived from statutory power, the exercise of which was conditional upon a payment of all taxes due. The decisions holding that a conveyance by the state under any special sale imparts what title the state has under any other sale, were rendered in cases where the consideration paid and recited in the deed in fact covered all taxes due. Otherwise they would not be in harmony with the cases above cited. In the cases of Gamble v. Witty, 55 Miss. 27; Caruthers v. McLaran, 56 Ib., 377, both of which relate to sales under the "abatement act, " it was not suggested that the auditor had not all the taxes due. The theory of those cases is that, in reselling land in 1875, under the abatement act, the state did not intend to release its claim to any property. If it had a good title, it would continue to have it, but if, perchance, its title was invalid, it would endeavor, by this sale, to mend its hold, though, in purchasing thereafter from the state, all taxes prior to the fiscal year of 1874 were remitted. No previously accrued taxes could, therefore, have been due, and these cases are without application.

3. The statute of limitation of ten years did not bar defendant's claim. If that statute operated against the liquidating levee board, an agency for the collection of taxes, deriving all of its authority from the state, it certainly did not as against the state itself, which acquired title to the land under the act of April 11, 1876 (Laws, p. 166). The three years limitation of § 539, code 1880, cannot be invoked by the appellee, for the reason that the state's title was never in Scott, and did not, therefore, pass to appellee by the deed of Scott and Montgomery, trustees.

4. Whether the title of the liquidating levee board was good or bad, the actual occupancy of the defendants, Williams and Lightfoot, of the parts of the land owned by them, renders their title unassailable as purchasers under the decree in Green v. Gibbs, and from the state under the act of March 2, 1888 (Laws, p. 40).

Mayes & Harris, on the same side.

Moore & Jones and R. O. Johnston, for the appellee.

1. The title acquired by Scott from the state was not invalid by reason of any fiduciary relation he bore to the owner, or any obligation to pay the taxes. Oswald v. Wolf, 126 Ills., 542. Nor was it void because he paid no taxes for any year prior to 1881. The land had been sold to the ten cent levee board in 1867, and that title became vested in the state by virtue of the act of April 11, 1876 (Laws, p. 166), and whatever title the state had, passed to Scott on his purchase in 1883. Caruthers v. McLaran, 56 Miss. 371; Gamble v. Witty, 55 Ib., 27. The state's deed to Scott conveyed a good title, although he paid the taxes of no year prior to 1881. He bought under a sale made in 1882 for the taxes of 1881, and, under § 561, code 1880, was not required to pay more than he did pay. The decisions relative to sales under the act of 1884, have no application to this case, for the two statutes are essentially different in their terms.

2. The evidence shows that Buford was in actual occupancy of a part of the land, claiming the whole under his deed from Scott and Montgomery, of December 19, 1887, up to April 1, 1891, when this suit was brought, and, even if his title was invalid at its inception, it would now be perfect by virtue of § 539, code 1880. Pearce v. Perkins, 70 Miss. 276; Patterson v. Durfey, 68 Ib., 384. And, although only actually occupying a part of the tract, his possession must be taken as co-extensive with the calls of his deed. Wilson v. Williams' Heirs, 52 Miss. 487; Hanna v. Renfro, 32 Ib., 125.

3. He also invokes the ten-year statute of limitations, to show that the pretended title in the liquidating levee board was barred and extinguished prior to the passage of the act of March, , 1888, under which the defendants claim to have derived title. Tiedeman on Real Prop., §§ 716, 171; Jones v. Merrill, 69 Miss. 747. It cannot be denied that the statute of limitations ran against the liquidating levee board prior to 1890. Adams v. Railroad Co., 71 Miss. 752. It ran against the state from 1857 to 1877. Code 1857, p. 402, art. 25; Code 1871, § 2169; Whitney v State, 52 Miss. 732. And it ran against counties, cities and towns even when it did not run against the state. Clements v....