Sigman v. Lundy

• Citation: 6 So. 245,66 Miss. 522
• Court: United States State Supreme Court of Mississippi
• Decision Date: 20 May 1889
• Parties: J. B. SIGMAN v. WM. T. LUNDY ET AL

6 So. 245

66 Miss. 522

J. B. SIGMAN v. WM. T. LUNDY ET AL

Supreme Court of Mississippi

May 20, 1889

FROM the chancery court of Tunica county, HON. J. G. HALL Chancellor.

The original bill in this cause was filed in 1879 by J. B Sigman, appellant, against Tamlin Avent, and all other persons claiming any interest in the lands in question, and sought to confirm the taxtitle of appellant to the same. Publication was made as required in such cases by the statute. At the March term, 1880, the bill was dismissed as to Tamlin Avent, his death being suggested, and pro confesso decree taken against all claimants of the land, except the appellees, Wm. I. and Betty W. Lundy, who were minors, and who had appeared and answered by their guardian ad litem.

These defendants subsequently, by leave of court, amended their answer, and made it a cross-bill. The cross-bill alleged that the complainants therein were heirs of Tamlin Avent, the owner of the lands, and that the tax-titles under which appellant claimed were clouds upon their title, and prayed for a cancellation thereof.

The original bill was dismissed by the complainant in vacation and at the ensuing term, in October, 1880, the court made an order approving the dismissal, but, upon application of complainants in the cross-bill, recited in the order that the cross-bill was retained to be proceeded with as an original bill. Appellant appeared as a defendant to the cross-bill and the trial was subsequently had upon the issues made under the cross-bill and an amended or supplemental cross-bill in which four other heirs of Tamlin Avent were joined as complainants.

The titles of both the appellant and appellees are sufficiently shown in the opinion. The chancellor decreed in favor of the complainants in the cross-bill, and cancelled as void the tax-titles relied on by the defendant, the complainant in the original bill, who prosecutes this appeal.

It will be noted that the suit was proceeded with upon the crossbill, as an original bill, and the appellees, the parties defendant, who exhibited the cross-bill, are designated as complainants throughout the opinion.

Decree reversed and cause remanded.

Calvin Perkins, for appellant.

1. The dismissal of the original bill should have carried with it the cross-bill. Ladner v. Ogden, 31 Miss. 332; Thomason v. Neeley, 50 Ib. 310; Jacks v. Bridewell, 51 Ib. 881; Belcher v. Wilkerson, 54 Ib. 677. No difference can be discovered between this case and the case of Belcher v. Wilkerson, supra. In both cases the original bills were filed to confirm tax-titles, and in both the crossbill set up a legal title and the invalidity of the tax-title. The test is, not whether the matter set up in the cross-bill might be the subject-matter of an original bill, but whether it is wholly independent of the subject-matter of the dismissed bill, as was the case in Dewees v. Dewees, 55 Miss. 318. In this case the cross-complainants have a perfect legal title, or none, and no right to file an original bill but for the alleged invalidity of appellant's tax-title. In the language of Ladner v. Ogden, the relief sought was not "separate and independent of the original bill;" indeed it could have no standing in a court of equity, but for the claim of Mrs. Sigman that she had a valid tax-title to the land.

The cross-bill was not treated by the parties as an independent or original bill. Process was served on the solicitors in the original bill, and the orders taken thereon merely recite notice served on the solicitors.

2. It was even more erroneous, after retaining the cross-bill, to permit four other parties to join as co-complainants therein. The motion to strike out this amended cross-bill should have been sustained.

(3. Counsel reviewed in the light of the authorities the alleged irregularities in the sale of 1869, by the tax collector to the levee commissioner, but the view taken by the court renders it unnecessary to follow this argument.)

4. It cannot be said that the sale to the state in 1867, and the subsequent sale to the state under the abatement act of 1875, show that the land was not liable to taxation for levee purposes in 1869, and hence no title passed by the sale in 1869 to the levee commissioners. The releases executed by the auditor in 1883 to Mrs. Sigman are evidence of the fact that the taxes for 1874 were all paid before the sale of 1875, and that the title acquired by the state was void. Surely then the mere claim of the state under a void sale, since recognized as such by her authorized officer, and by him cancelled in accordance with his statutory power, will form no ground for invalidating the levee sale of 1869. The release relates back to the foundation of the state's claim of the land, and wipes it out as though it never had been. Was it proper in 1886 to invalidate and set aside the levee sale in 1869, because of a void sale to the state, which the state had already released?

Chalmers & Cooper, on same side.

Dabney M. Scales, and A. S. Buchanan, for appellees.

1. The cross-bill was properly retained after the dismissal of the original bill. Belcher v. Wilkerson, 54 Miss. 677; Dewees v. Dewees, 55 Miss. 315. In the latter case it is distinctly announced as the true rule that the dismissal of the original bill will not necessarily carry with it the cross-bill, where the cross-bill is filed for relief separate and independent of the original bill, though touching the same property or growing out of the same subject-matter involved in the original bill. Ladner v. Ogden, 31 Miss. 332; Wickliffe v. Clay, 1 Dana 585. In this case the relief sought by the cross-bill is a distinct and separate ground of equity jurisdiction. The cross-bill contains more than mere matter of defense, viz.: the cancellation of certain deeds as clouds upon the title of the complainants therein. Though touching the same property, and growing out of the same subject-matter, yet independently, the grounds of relief sought by the cross-bill would sustain an original bill.

2. There was no error in the court's allowing the cross-bill of Wm. T. and Betty Lundy to be amended so as to bring in as co-complainants the other four heirs of Tamlin Avent. The crossbill had been retained as an original bill. The original bill made all parties in interest defendants by publication and not by name. It developed that these parties had rights in the land and it was not only proper but necessary to join them as parties. But if there were error as to this, it could not harm the appellant, and this court will not reverse. Summers v. Brady, 56 Miss. 10, 18; Germania Ins. Co. v. Francis, 52 Ib. 457.

(3. Counsel argued at length the invalidity of appellant's title derived from a sale in 1869 for the taxes due the levee board, contending that the proceedings of the said tax sale were fatally defective.)

4. The antecedent sale to the state in 1867, followed by a sale to the state in 1875 under the abatement act, shows that the land was not liable to taxation for levee purposes in 1869, and hence no title passed by the sale in that year.

5. There was no title, outstanding in the state, when the bill was filed and the decree entered. The title acquired by the state by the sale in 1867 was void. The land was not held by the state for any valid taxes in 1875, when it was sold again; and, besides this, whatever claim the state had gained to the land it parted with by the release executed by the auditor to J. B. Sigman.

OPINION

COOPER, J.

The chancellor did not err in retaining the cross-bill and permitting complainants therein to proceed with it as an original bill. In Belcher v Wilkerson, 54 Miss. 677, there was no order of court retaining the cross-bill, while in the case now before us the order of the chancellor expressly retained the cross-bill "as an original bill," and directed process to be issued on it as such. The appellant entered her appearance and answered, thus waiving the process directed to be issued.

Proceeding to the main questions involved, it is sufficient to say in reference to complainants' title that as heirs at law of Tamlin Avent they are the owners of the lands in controversy (Sec. 18, T. 17), unless the tax-title under which appellant claims is valid, or unless a valid outstanding tax-title is shown. The history of the tax-titles adverse to the ownership of complainants is this:

The lands were sold to the state in 1867 for the taxes of 1866; in 1869 they were sold for levee taxes and bought in by the board of levee commissioners; in 1875 they were sold by the state under the act of March 1, 1875 (commonly known as the Abatement Act), and again bought by the state; in 1878 they were sold by Gwin and Hemingway, commissioners of the chancery court of Hinds county in the case of Green v. Gibbs, and the title thus conveyed is now vested in appellant.

Appellant first acquired a claim to the lands in November, 1878, and in 1883 she procured from the auditor of public accounts a release from the state's title to all the lands except the N. E. 1/4 of S.W. 1/4 and the N.W. 1/4 of S. E. 1/4, by compliance with § 574 of the code of 1880, which is as follows: "When the owner or any person interested in any lands held by the state by a purchase at a sale for taxes shall produce a tax receipt for the payment, to the collector, of the taxes for which said land was sold, before such sale, and shall pay to the collector of taxes of the county in which said land is, all taxes which have subsequently accrued on said land and not been paid, taking his receipt therefor in duplicate, which such collector is hereby required to furnish him, and shall file with the clerk of the board of supervisors of such county one of said receipts, and with the auditor of public...