Simpson v. Ricketts

• Decision Date: 13 February 1939
• Docket Number: 33534
• Citation: 185 Miss. 280,186 So. 318
• Court: Mississippi Supreme Court
• Parties: SIMPSON et al. v. RICKETTS et al

186 So. 318

185 Miss. 280

SIMPSON et al. v. RICKETTS et al

No. 33534

Supreme Court of Mississippi, Division B

February 13, 1939

Suggestion Of Error Overruled April 30, 1939.

APPEAL from the chancery court of Issaquena county HON. J. L WILLIAMS, Chancellor.

Suit by Mrs. Ernestine Simpson and others against C. H. Ricketts and another to confirm their claim of title to certain land and to recover rents for its use and for partition and for cancellation of a tax deed to one party defendant and conveyance by him to the named defendant. From a decree dismissing the bill, complainants appeal. Reversed and remanded.

Reversed and remanded.

L. F Easterling and J. E. Skinner, both of Jackson, for appellants.

If complainants, by pleading and by proof, have established ownership of the land in question in themselves at the date of the tax sale to Johnnie Brown in 1930, then, under any theory of the case, this cause must be reversed and remanded to the lower court for a hearing on the question of amount necessary to redeem, or quite possibly the cause could be reversed and decision rendered in this court from the undisputed testimony in the record.

We hold it to be fundamental law that an allegation specifically and definitely charged in the bill of complaint must be taken as true unless denied under oath in defendants' answer.

Bennett v. Chaffe, 69 Miss. 279, 13 So. 731.

In 1905 the United States Congress passed what is known as the McLaurin Act for the purpose of validating titles of all parties who had purchased swamp, and overflowed lands from the state of Mississippi. By the terms of this act the title to any swamp and overflowed land which had previously been rejected by the United States Government, but which had been patented by the state of Mississippi to various patentees, as swamp and overflowed land, was confirmed in the respective purchasers as of the date of such sale, and by this act the United States Government conveyed to the said purchasers whatever right or title remained in the government to these lands.

Shoub v. Perkins, 111 Miss. 78, 71 So. 270.

We earnestly submit that the allegations of the bill clearly and specifically deraign title to the land out of the United States Government, and down through mesne conveyances to O P. Simpson, through whose will complainants claimed. We say further that these allegations were not denied except by general traverse, and should have been taken as confessed, and we say, further, that even should the court hold that proof of these allegations was necessary, that the introduction of the book of original entries certified to by the State Land Commissioner, under seal, and certified copies of the field notes of the United States Surveyor General's office, which said original entry book showed the land in question granted to the state of Mississippi as swamp and overflowed land under the Act of Congress of 1850, was full and adequate proof that the title to the land in question passed from the United States Government to complainants remote vendors.

In the case of Westerfield v. Merchant, 93 Miss. 791, 47 So. 434, the court held that where property was assessed to one who subsequently died, and left three minor heirs, the property afterward selling for taxes, and the minors filing their bill to redeem that there was no necessity upon the minors to trace title any further back than the tax conveyance. That in such a case the tax conveyance is analogous to a common source of title.

Defendant, C. H. Ricketts, as complainants' tenant is estopped to assert any adverse title to complainants without first attorning to them.

Johnson v. Langston, 179 Miss. 622, 176 So. 531.

Chancery court has jurisdiction for redemption of minors' undivided interest.

Cuevas v. Cuevas, 110 So. 865, 145 Miss. 456; Barnett v. Wedgeworth, 1 Miss. 334.

The assessment roll for Issaquena county for 1928-1929 was not a valid assessment.

Section 3161, Code of 1930, Chap. 213, Laws of 1926.

The tax sale was void for the reason that the sheriff attempted to sell contiguous tracts of land by separate sales.

Sec. 3249, Code of 1930; Carter v. Moore, 183 So. 512; Nelson v. Abernathey, 74 Miss. 164, 21 So. 150; Cogburn v. Hunt, 54 Miss. 675; Yandell v. Pugh, 53 Miss. 295.

The lower court erred in excluding testimony as to signature of board of supervisors' minutes.

Stevenson v. Reed, 90 Miss. 341, 43 So. 433.

S. G. Salter, of Hazelhurst, for appellants.

The purchaser at tax sale has no conveyance and no legal right to a deed of conveyance until the period of redemption shall have expired. Any deed prior thereto is a nullity and is a cloud on the title of the owner. It seems to us that the same legal rule which applies to persons sui juris should also apply to minors unless there is a statute to the contrary. When the Legislature failed to expressly provide that the purchaser of a minor's land at tax sale should have a right to deed and possession after two years from the date of the purchase, then the presumption would naturally follow that it was and is the legislative intent to allow minors the right of possession during the full period of his right of redemption just as adults are accorded the right of possession during their full period of redemption.

Whether a tenant can purchase an outstanding title and defend without first attorning possession was long since settled by the common law. Our court, speaking through Chief Justice SMITH, has reasserted and explained all moot questions thereabout since this case was tried in the lower court.

Johnson v. Langston, 176 So. 531.

In the above case, except that all the parties were adults, it is very similar to the case at bar. The court there held that a tenant was estopped to set up a tax title or any other title to defeat his landlord before he had attorned possession to his landlord. Following that case, we are of the opinion that the court must reverse the learned Chancellor both as to the minors and to Mrs. Simpson, the mother. The writer of the brief is of the opinion that should the court follow its latest decision on this point, then all of the other points raised are surplusage because, in this case, right on the threshold of his defense Ricketts is met with the proposition that he has no title which he could assert in a court of equity or law to defeat us or our legal right of possession, and having no title in himself which he could legally assert, he is stripped of all defense on all other questions.

Clements & Clements, of Rolling Fork, for appellees.

It is the unquestionable law that the appellants must rely on the strength of their own title and cannot rely on the defects or weakness of the title of the appellees.

Goff v. Avent, 122 Miss. 86; Chiles v. Gallagher, 67 Miss. 413; Wilkerson v. Hiller, 70 Miss. 678; Long v. Stanley, 79 Miss. 298.

Appellant's chain of title is no stronger than its weakest link, regardless of what the true facts may be regarding the title of this particular land as passing from the United States Government to the state of Mississippi under the Swamp Land Act of September 1850. There is absolutely no proof offered in this case and no evidence of any character to show that the state of Mississippi ever received a patent or a deed from the Government to this land under the Act; or that the second section of the Act requiring the selection and designation of the lands before title passed to that particular land, to be approved by the Surveyor General and the Secretary of Interior had ever been complied with. The burden of proof in this case was upon the appellants, and they have failed to meet it by showing that the title came out of the United States Government under the Swamp Land Act of September 28, 1850.

Buena Vista County v. Iowa Falls, etc., R. R. Co., 112 U.S. 165, 28 L.Ed. 680.

So far as the evidence in this case is concerned, the state of Mississippi only got an inchoate title by virtue of the grant itself, and the jurisdiction over and the control over the lands is still in the agencies of the United States Government, over which the courts have no control, nor can they control, and the Statute of Limitation by adverse possession did not and does not run against the United States Government. Therefore, if we are correct in this, the appellants have totally failed to show their right to relief, because they have never shown themselves to be the owners of the land in question in this case.

Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 41 L.Ed. 621; Willoughby v. Caston, 111 Miss. 688, 72 So. 129; Carr v. Moore, 93 N.W. 52, 119 Iowa 152; Little v. Williams, 231 U.S. 335, 58 L.Ed. 256.

It is our contention that regardless of whether the state of Mississippi has identified the lands or made the proper selection which was approved by the Secretary of Interior, or other competent federal authority, or whether it has received a patent to the land, makes no difference, for the reason that this record nowhere shows any evidence of that fact, and the only attempt was to show that it is now subject to overflow.

Conners v. Meservey, 76 Iowa 691, 39 N.W. 388; Young v. Hanson, 95 Iowa 717, 64 N.W. 654; Martin v. Marks, 97 U.S. 345, 24 L.Ed. 940; Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039; Irwin v. San Francisco Savings Union, 136 U.S. 578, 34 L.Ed. 540; Funston v. Metcalf, 40 Miss. 504; Dowd v. Louisville, N. O. & T. Ry. Co., 68 Miss. 159.

Your Honors will observe that by section 3 of this McLaurin Act the Act does not apply to the countries within the Third Congressional district, naming them and including the county of Issaquena, in which the land in question in this case is located. This being true, this land must be...