Paepcke-Leicht Lumber Co. v. Savage

• Decision Date: 27 October 1924
• Docket Number: 23389
• Citation: 101 So. 709,137 Miss. 11
• Court: Mississippi Supreme Court
• Parties: PAEPCKE-LEICHT LUMBER CO. v. SAVAGE. [*]

101 So. 709

137 Miss. 11

PAEPCKE-LEICHT LUMBER CO. v. SAVAGE. ^[*]

No. 23389

Supreme Court of Mississippi

October 27, 1924

Division B

Suggestion of Error Overruled Nov. 24, 1924.

APPEAL from chancery court of Tunica county, HON. G. E. WILLIAMS Chancellor.

Suit by the Paepcke-Leicht Lumber Company against J. L. Savage. From a decree dissolving a temporary injunction and dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

Watson & Jayne, for appellant.

First Tract. The first tract of land in controversy is the fractional west half of section 17, township 4, range 12 west, and accretions (except the north half of the northwest quarter thereof), one hundred ten acres. In this tract appellant claims an undivided one half interest, deraigning its title thereto through a sale to the state for taxes, made July 7, 1868, and thence through mesne conveyances to appellant, all of which appear in appellant's deraignment of title. The introduction of this deed was objected to by appellee, on the ground that it had been redeemed from the tax debtor having paid the taxes for the years 1874 and 1875 as provided by what is commonly known as the "Abatement Act" (Laws 1875, p. 11). Evidence was offered of such payment after the cause was in progress of argument; the case having been closed at the June term and the argument having been postponed until September 20, 1920, with leave to file documentary evidence up to August 20, 1920. The appellee failed to offer this evidence up to August 20, and did not offer it until the argument was well advanced on September 20. Appellant contends that this evidence, under the circumstances, should have been excluded. Without this evidence appellant would have been entitled to a decree for the undivided one-half interest in this particular tract, as prayed for in its bill of complaint.

Second Tract. The second tract in controversy is the fractional southwest quarter of section 16, township 4, range 17, west, with accretions, containing twenty-seven acres, more or less. Appellant showed a complete paper title to this particular tract, through its deraignment of title. Against the chain of title thus shown, appellee defended on two grounds, to-wit: (a) That one of the links of appellant's chain of title failed in that the deed from the tax collector to the levee commissioners, filed May 17, 1869, and the deed from the tax collector for the levee board, dated January 20, 1878, and the deeds appearing in the record on pages 175, 176 and 177, whereby this land passed out of the levee boards and out of the state to the grantees therein named, were all void, because the lands when forfeited for taxes for levee purposes were situated outside of the levees, and were unprotected thereby, and therefore not subject to sale; and (b) because appellee had a good title to the land through a tax sale made thereof on April 4, 1910, for taxes of the year 1909.

To the first position above mentioned, appellant responds that, whether the levee sales were good or bad, that question was put at rest by the quieting title proceedings in the case of M. A. Hunter v. Unknown Parties, No. 1536, and set out in full in the record on pages 140 to 166, inclusive, wherein it will be found that M. A. Hunter, through whom appellant deraigned title, began and carried to conclusion proceedings to quiet the title to this tract of land, along with the other lands therein mentioned; that the bill of complaint was against unknown defendants; that this tract of land was described therein; it was also described in the deraignment of title attached to the bill, this particular sale being there mentioned; the land, and this particular sale, as well, were also described in the confirmation notice shown by the proof of publication in the case; this was also true of the second confirmation notice; both as to the land and the particular sale, and the title to this tract was confirmed in the final decree and specially described therein. The foregoing proceedings were had under section 548 of the Code of 1906. This statute applied to the confirmation of levee tax titles, as well as to the confirmation of state tax titles. Belcher v. Mhoon, 47 Miss. 613; Beirne v. Burdet, 52 Miss. 795. The effect of this decree was to conclude all issues that were made or could have been made on the allegations of the bill of complaint, by all claimants, whether they took through the owners of the land at the time it was forfeited to the levee board or not.

The law is well settled that a decree of this kind is conclusive as to all issues involved, or that could have been raised in the case. The scope and effect of such a decree is stated in the following authorities: 32 Cyc.-b 1384; 23 Cyc.-h 1336; Wall v. Wall, 28 Miss. 409; Chiles v. Champenois, 69 Miss. 603. Nor will the appellee be allowed to attack collaterally the regularity of this confirmation decree. Wall v. Wall, supra. A decree confirming title to land becomes a muniment of title and is usable both in deraignment of title and as evidence thereof. Railway Co. v. Le Blanc, 74 Miss. 650. The two years limitation provided by section 3111 of the Code of 1906 (Hemingway's Code 2475) applied in the instant case. The decree had been rendered for more than two year before the effort on the part of appellee to attack it in the instant case. Therefore, appellant was entitled to have the application of this statute in this case. Brooks v. Spann, 63 Miss. 198; Brown v. Wesson, 78 So. 833.

The correctness of the decree in this cause is presumed. This is the rule where there is "a possible state of facts which would justify the judgment." Duncan v. McNeal, 31 Miss. 704; Cannon v. Cooper, 39 Miss. 784; Cason v. Cason, 31 Miss. 784; Vicksburg Grocery Co. v. Brennan, 20 So. 845.

In the second phase of appellee's defense with regard to this particular tract of land, to-wit: that he took title to all that is left of fractional southwest quarter and accretions of section 16, township 4, range 12 west, about twenty-seven acres, through a tax sale thereof made on April 4, 1910, to one Wicks, and from Wicks to him, appellant relies as follows: (a) That the tax sale was void because, as disclosed by the record, the assessor did not give notice by publication of the fact that he had filed the assessment roll, upon which the tax sale was based. In other words, this tax sale suffers from the same infirmity as that passed on in the case of Cameron v. Whittington, 82 So. 311.

Third Tract. Tract Number 3, as claimed by appellee under the tax sale to him, made on April 6, 1914, is described as follows: All frac. no levee, section 13, township 4, range 13 west, ten acres. Appellee, however, furthered endeavored to identify this particular tract in his answer, by an allegation that "is known as a part of Favorite Island," thereby claiming the particular tract to have been a part of the tract of land lying in and attached to the western front of section 18, East of Favorite Chute in section 13, as shown on the photogravure sheet of Exhibit 2, as distinguished from the fifteen acre tract lying West of Favorite Chute, shown in the same Exhibit. The defense of appellee as to this particular tract is two-fold: (a) Claim of ownership through the tax deed above mentioned; (b) alleged failure of appellant to show title in itself to this particular tract.

This phase of the case will be here discussed under the two headings just stated, both as to the law and the facts. (a) Title through tax sale. When the tax collector's deed, of April 7, 1914, conveying this tract of land to appellee (appellee's Exhibit 16), was offered in evidence by appellee, it was objected to by appellant, on the ground that the assessor did not give the notice required by law to the taxpayers of his having filed the assessment roll; also, that the tax deed was void from the standpoint of description; also, because there was no section 13, township 4, range 13 west, in existence at the time of the making of the assessment roll, or at the time of the sale of the land to appellee, as that section had long since washed away; also, because, in the original Government survey and plat of section 13, there were two fractions of that section platted and charted, and the two were in separate tracts, with intervening waters between them, and there is nothing in this particular deed to identify either of these particular tracts, or to apply the tax collector's deed thereto. The record discloses that the only notice given to the taxpayers was that set out on page 115 of the record, which was given by the chancery clerk, and not by the assessor. Appellant contends that this particular act rendered this particular tax collector's deed void, under the authority of the case of Cameron v. Whittington, supra. Appellant, also, contends that the description in the tax deed is void for the reasons covered in the above objections. There is nothing in the tax collector's deed to identify the particular ten acre tract therein described as having been sold, nor can the description be aided by the allegations of the answer that it was a part of Favorite Island. On the other hand, the Government survey shows two tracts, separated from each other by a stream of water, as composing section 13.

The objection of appellant, based on the non-existence of section 13, as a section, at the time of the assessment and at the time of the sale thereof for taxes, belongs to the next phase of this particular question, and will be there discussed. (b) Alleged failure of appellant to show title to section 13 in itself. Appellant contends that it showed title in itself to all of the lands in and West of sections 18 and 19, as shown in plat, Exhibit 4, as accretions thereto. That, if any part of the land...