McCullen v. Mercer

• Decision Date: 23 February 1942
• Docket Number: 34897.
• Citation: 192 Miss. 547,6 So.2d 465
• Parties: McCULLEN, State Land Com'r, v. MERCER.
• Court: Mississippi Supreme Court

6 So.2d 465

192 Miss. 547

McCULLEN, State Land Com'r, v. MERCER.

No. 34897.

Supreme Court of Mississippi

February 23, 1942

Greek L. Rice, Atty. Gen., by Jefferson Davis, Asst. Atty. Gen for appellants.

Geo M. Ethridge, Jr., of Meridian, Will Estes, of Enterprise, and W. F. Latham, of Quitman, for appellee.

ROBERDS Justice.

In 1930 Mercer, being then the assignee and owner of the unexpired part of a ninety-nine year lease of rural sixteenth section school lands in the Choctaw purchase in Clarke County permitted the same to sell to the state for non-payment of ad valorem taxes. After the expiration of the period of redemption from this sale, Mercer applied to the state land commissioner to purchase these lands. These negotiations continued without the issuance of a patent until 1936, when Mercer, on notice from the land commissioner, made a new application as required by Ch. 174, Laws of Miss. 1936. In December, 1937, the land commissioner returned to Mercer the installment payments he had made because the Governor had not approved the patent. In February, 1939, Mercer filed with the land commissioner another application. In July, 1939, the patent was issued to Mercer and recorded on the land records of Clarke County. Immediately after the issuance of this patent the land commissioner wrote Mercer he had been advised by the attorney general of Mississippi that this patent was void, because the land commissioner had no authority to sell these lands, and he likewise wrote the chancery clerk of Clarke County instructing him to make the proper notation on his records that this patent had been cancelled, which was done. In September, 1939, the land commissioner returned to Mercer the money he had paid for this patent, which was accepted. Mercer then tried, unsuccessfully, to lease these lands from the supervisors of Clarke County. In March, 1940 the supervisors made a lease of the lands for fifteen years to one McLemore.

Mercer then filed this bill, joining as defendants thereto McLemore, the supervisors and the county superintendent of education of Clarke County, the land commissioner and attorney general of Mississippi, praying (1) that the land commissioner be required to specifically perform his agreement to issue the patent, (2) for the cancellation of the attempted cancellation of the recorded patent, (3) for removal of the claim of McLemore as a cloud on his title, (4) for an injunction to restrain McLemore from the use and occupation of the lands and from interfering with such use and possession thereof by Mercer, and (5) for an accounting of rents and profits from McLemore. The attorney general and land commissioner filed a general demurrer to the bill, which was overruled, and an appeal granted therefrom to this Court to settle the principles of the case. The other defendants answered, no further action being taken, awaiting the outcome in this Court.

Passing over the question (a) whether this form of suit will lie against the attorney general and land commissioner, and (b) whether Mercer, by accepting return of the patent money and his negotiations with the supervisors for a lease under them of the lands, is estopped to now claim under the patent, we go at once to the fundamental question whether, under these facts, Mercer has any valid claim to the lands. This involves the respective powers of the supervisors and the land commissioner over such lands.

Section 211 of the Constitution of Mississippi confers power upon the Legislature to lease, but denies it the power to sell, sixteenth section lands involved in this case. See Chapter 338, General Laws of Mississippi, amending the foregoing section as to certain lieu lands, inserted by the Legislature at the current session, and filed with the Secretary of State February 9, 1942.

Section 6759, Code of 1930, carrying out the provisions of Section 211 of the Constitution, provides "none of such lands shall ever be sold, but they shall be leased * * *."

The authority of the supervisors over such lands will be found in the following sections of the Code of 1930:

Section 6760 provides: "The several counties wherein are situated any of such lands have, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control thereof, and of all funds arising from any disposition thereof heretofore or hereafter made * * *"; requires such funds to be paid into the county treasuries to be used for purposes of education within the townships in which the lands are located.

Section 6761 authorizes the supervisors to sell timber, sand and gravel from such lands, and to lease them for turpentine and pasturage purposes.

Section 6762 empowers the supervisors, with approval of the governor and attorney general, to lease such lands for oil, gas and mineral exploration and development.

Chapter 272, Laws of Mississippi 1934, page 546, provides: "It is the duty of the superintendent of education of each county with the approval of the board of supervisors, to lease the sixteenth section lands subject to lease and not situated in a city, town or village, by public or private contract, as the board shall direct and for a term it shall direct * * *."

Section 6771 authorizes the...