Penick v. Floyd Willis Cotton Co.

• Decision Date: 05 May 1919
• Docket Number: 20623
• Citation: 119 Miss. 828,81 So. 540
• Court: Mississippi Supreme Court
• Parties: PENICK ET AL. v. FLOYD WILLIS COTTON CO

81 So. 540

119 Miss. 828

PENICK ET AL. v. FLOYD WILLIS COTTON CO

No. 20623

Supreme Court of Mississippi

May 5, 1919

Division B

1 TAXATION. Exemption. State lands.

Swamp and overflowed lands belonging to the state are not now and never were subject to taxation while owned by the state.

2. ADVERSE POSSESSION. Lands of state.

Statute of limitations have not run against the state since January 24, 1877 and the title of the state to swamp and overflowed lands is unaffected by adverse possession under a tax deed to such lands or otherwise.

3 SAME.

The statute of limitations does not attach to swamp and overflowed lands owned by the state until the state has parted with its title.

4. ADVERSE POSSESSION. Color of title. Tax deed.

None of the statutes of limitations in the Code of 1871 or the Code of 1880 could apply to lands patented by the state in 1909 long after these statutes served their day, and yielded to the later enactments contained in the Code of 1906.

5. ADVERSE POSSESSION. Color of title. Tax deed.

Where lands were owned by the state and therefore not subject to taxation a tax deed to such lands was utterly void, and was not aided by section 3095, Code 1906, providing that occupation for three years under a tax deed should bar suit to recover land or assail title because of defect in tax sale.

HON. O B. TAYLOR, Chancellor.

APPEAL from the chancery court of Yazoo county, HON. O. B. TAYLOR, Chancellor.

Bill by the Floyd Willis Cotton Company against John Penick and others. From a decree for complainant, defendant appeals.

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

Affirmed.

Barbour & Henry and Campbell & Campbell, for appellant.

It is axiomatic that complainant, seeking to confirm his title, must show perfect title. We submit that complainant has not done so in this case. There is no allegation in the bill that the land in controversy is swamp and overflow land and no proof was offered to that effect. Under the Act of Congress granting to the state swamp and overflow lands the secretary of the interior was required to furnish to the Governor of the state a list of these lands and the Governor then had to approve same. This action on the part of the secretary and of the Governor then vested the title in the state. The law required that a list of these lands should be on file in the land office at Jackson, Mississippi, and a certified copy of this list showing that the land in controversy was included in this list should have been introduced in evidence. This was not done and title is therefore not shown in the state. Fore v. Williams, 35 Miss. 533.

The answer of defendant sets up thirty-seven years' actual possession of the land in bar of complainant's right to recover; and pleads the ten year statute of limitations and chapter 23 of Acts of Mississippi 1888 and the one year statute of limitations under this act and the three years' actual occupancy under the Codes of 1880, 1892 and 1906 in bar of complainant's right.

It is well-settled law that when a grantee is in the actual possession and occupancy of any portion of the land called for in his deed, that this possession and occupancy extends to the entire tract conveyed. See Brougher v. Stone, 72 Miss. 647; Butts v. Ricks, 82 Miss. 533. These cases are directly in point.

Should the court not agree with our contention that possession of a portion of the land conveyed extends to the entirety, we submit that the record in this case shows that appellant and T. H. Campbell and their vendors have been in the actual possession of the Northwest quarter of Northwest quarter section 6 (the land in controversy), by exercising every indicia of ownership, use and occupation of which this land was susceptible, viz: being assessed with and paying taxes on said land, cutting and removing firewood and selling timber therefrom and claiming it as against the world. See the case of McCaughan v. Young, 85 Miss. 275, which is directly in point.

The appellant sets up in his answer the long possession of thirty-seven years of himself and those from whom he claims title in bar of the right of complainant to recover and we earnestly submit that this constitutes a complete bar to the right of appellee to recover in both cases. We submit that under the long, continuous and actual possession that whatever defects may appear in the title will be presumed to have been cured under doctrine of "Lost Grant," issued by the state prior to the late patent issued by the state to J. F. McCauley through whom appellee claims. We will cite authorities on this point later.

We appreciate the fact that the land commissioner has certified that no patent has ever issued from his office except the one to McCauley but this is not conclusive and we think the presumption of a prior grant from the state would prevail where the evidence shows such a long period of uninterrupted actual adverse possession as is disclosed by this record.

The answer set up the Acts of 1999, chapter 23, page 40, in bar of complainants right to recover. We think the chancellor erred in not holding that the Acts of 1888, under the facts of this case, constituted a complete bar to complainant's right to recover. This act is entitled: "An act to quiet and settle the title to certain lands in the Yazoo Delta which were sold by the commissioner of the chancery court of Hinds county in the case of Joshua Green and others against Hemingway and Gibbs, Treasurer and Auditor and Ex-Officio Liquidating Levee Commissioners." It is a well known fact, and doubtless one of the moving causes for the passage of this act, that great confusion as to the title of lands which were conveyed by these commissioners resulted from the fact that both the liquidating levee board and the state of Mississippi claimed the same lands and it was a matter of great doubt as to which had the better title. This act was passed for the purpose of quieting and settling the title in the purchaser under deeds from said commissioners. We find in section 2 of this act that the auditor shall execute deeds, to those purchasing from the commissioners upon proof of payment of all taxes due on the land so purchased since the date of purchase, conveying the title of the state of Mississippi whensoever the same may have been acquired by the state.

We earnestly submit that the effect of this act was a grant from the state of Mississippi to purchasers from said commissioners of whatever title the state had to lands so conveyed whenever acquired. The very purpose of the act was to quiet the title to lands purchased from said commissioners by vesting in the purchasers whatever title the state of Mississippi had in these lands, it mattered not from whom or when the state acquired title. That this was the purpose and effect of the Acts of 1888 is as evident as that Uncle Toby, the hero in that old but remarkable novel, Tristam Shanty, was a gentleman.

The direction to the auditor to make deeds to the purchasers from said commissioners under decree of the chancery court of Hinds county was a mere matter of detail, put into the act so that the purchaser could have a muniment of title which he could have placed of record if he so desired. The chief and important thing is that the act does release to the purchaser from the commissioners whatever title the state had and whenever acquired.

But should the court be of the opinion that a deed from the auditor was necessary to divest the title of the state then we submit that the open, continuous and long possession and occupancy of the lands by William Penick and those from whom he claims title raises the unmistakable presumption that William Penick obtained from the auditor a deed from the state but failed to have the same recorded. In this connection we wish to call the attention of the court to the fact, as shown by the agreed statement of facts, that William Penick, the ancestor of appellant, in fact received a deed from Mrs. Devilin, February 12, 1887, and this deed was not filed for record until July 20, 1896, a period of almost ten years. Would it be unreasonable to presume that William Penick obtained a deed from the auditor and by similar neglect never had same recorded.

The agreed statement of facts shows that William Penick was in the actual possession of this land prior to and at the date of the passage of the Act of 1888, occupying the same and claiming to be the owner thereof. Is not the presumption almost irresistible that Penick obtained a deed to the land in controversy from the auditor pursuant to the Act of 1888. It was his right and privilege to do so by merely making application and satisfying the auditor that he had paid all taxes accruing since the date of the deed from the commissioners. And we again call the court's attention to the fact that it is agreed that Penick has paid all taxes in said lands. This act on his part entitled him to have the deed from the auditor.

In support of our contention as to this presumption we cite the court to the following authorities: Grauth v. Gillespie, 109 Miss. 679; Native Lumber Co. v. Elmer et al., 58 So. 703; Scarbrough v. Native Lbr. Co., 79 So. 48. These cases are directly in point on the presumption of deed to William Penick and we request the court to make a careful perusal of same.

But if we are mistaken in our contention as to the presumption of a deed from the auditor the Acts of 1888, section 4, page 41 provides: That twelve months' occupation at any time after the passage of this act, of any tract of land under conveyance from said commissioners of the Hinds county chancery court, or under said auditor's deed, or of any part thereof by any such occupant, claiming the whole, shall forever bar any action either at law or...