Slay v. Lowery

• Decision Date: 05 November 1928
• Docket Number: 27360
• Citation: 119 So. 819,152 Miss. 356
• Court: Mississippi Supreme Court
• Parties: SLAY v. LOWERY. [*]

119 So. 819

152 Miss. 356

SLAY v. LOWERY. ^[*]

No. 27360

Supreme Court of Mississippi

November 5, 1928

Suggestion of Error Overruled Dec. 17, 1928.

(In Banc.)

1. STATES. Consideration paid state for land conveyed, by patent slightly in excess of fifty cents per lot held, not so inadequate as to constitute donation (Hemingway's Code 1927, sections 6087-6089; Constitution 1890, sections 90 par. u, 95).

Consideration paid state for land conveyed by patent under author ity of Laws 1926, chapter 185 (Hemingway's Code 1927, sections 6087-6089), slightly in excess of fifty cents per lot held not so inadequate as to amount to donation by state in violation of Constitution 1890, sections 90, par. u, 95.

2 EVIDENCE. Purchaser of land from state by virtue of patent is entitled to presumption that state officers satisfactorily performed duties in fixing sale value (Hemingway's Code 1927, sections 6080, 6084, 6087-6089).

Purchaser of lands from state at a price slightly in excess of fifty cents a lot by virtue of patent issued under authority of Laws 1926, chapter 185 (Hemingway's Code 1927, sections 6087-6089), held entitled to benefit of presumption that state officers faithfully performed their official duties in fixing sale value of lots as required by Code 1906, sections 2912, 2916 (Hemingway's Code 1927, sections 6080, 6084) which presumption, though not conclusive, is at least prima-facie true.

ETHRIDGE, McGowen, and PACK, JJ., dissenting.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Harrison county, HON. V. A. GRIFFITH, Chancellor.

Suit by R. J. Lowery against Mrs. W. G. Slay. Decree for complainant and defendant appeals. Affirmed.

Affirmed.

Fred Bacho, for appellant.

Wadlington & Corban, for appellee.

ANDERSON, J. ETHRIDGE, J. dissenting. MCGOWEN and PACK, JJ., concurring in the dissent.

OPINION

ANDERSON, J.

Appellee filed his bill in the chancery court of Harrison county against appellant to confirm his title by patent from the state to certain lots, described in the bill, situated in the Summerville addition of the city of Biloxi, in said county. There was a trial of the case on bill, answer, and proofs, resulting in a decree confirming appellee's title.

On the former appeal in this case to the supreme court (Slay v. Lowery, 114 So. 830), the court held that at the time the lots involved were patented by the state to the appellee, a perfect title thereto was vested in the state by purchase at a tax sale. Appellee claimed title under two patents from the state, one issued on the third day of May, 1922, and another issued the fourth day of June, 1926, in lieu of the first patent, under chapter 185, Laws of 1926 (Hemingway's 1927 Code, sections 6087 to 6089, inclusive). On the first trial of the cause, the court admitted in evidence the first patent to the lots, but excluded the second patent. In the opinion of the court on the former appeal, the first patent was held to be void, under the authority of Jenkins v. Bernard, 148 Miss. 293, 114 So. 488, but the validity of the second patent was not passed upon, because when offered in evidence in the chancery court, it was ruled out; and for that reason this court held that it was not before this court, and reversed and remanded the cause.

When the cause went back to the lower court, the only material addition made to the record was the introduction, by the appellee, of the second patent, which was issued, as stated, in lieu of the first patent under authority of chapter 185, Laws of 1926 (Hemingway's 1926 Code, sections 6087 to 6089, inclusive). On the last trial a decree was rendered establishing and confirming appellee's title, acquired by virtue of that patent.

When the first decree appealed from was rendered, the case of Hart v. Backstrom, 148 Miss. 13, 113 So. 898, had not been decided. The decision in that case, together with the decision in this case on the former appeal, foreclosed in favor of appellee every question involved in the cause except one, namely, whether or not the consideration paid the state by appellee for the lots was so inadequate as to amount to their donation by the state in violation of paragraph (u) of section 90, and section 95 of the Constitution. Paragraph (u) of the former section prohibits local, private, or special laws "granting any lands under control of the state to any person or corporation;" and section 95 of the Constitution provides, among other things, that "lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies."

The consideration paid the state by the appellee for the lots is to be found in the two patents under which he claimed title, the one issued on May 3, 1922, and the one issued in lieu of the first on June 4, 1926. The consideration set out in the first patent was fifty cents per lot; and in the second patent, one dollar additional for all the lots conveyed. There is no other evidence whatever in the record of this cause as to the value of the lots involved. Appellant offered none. Therefore, if we hold that by its patent of June 4, 1926, the state made a donation of the lots in violation of the Constitution, such holding must be based upon the consideration alone mentioned in the two patents, which is slightly above fifty cents a lot. For aught that appears in the record, the lots may have been so situated as to be almost worthless. It is shown by the record that the owner of the lots, rather than pay state and county taxes of a few cents on each of them, let them be forfeited to the state; and, furthermore, that rather than pay the insignificant amount necessary to redeem the lots from the tax sale to the state he permitted to take place the lapse of the statutory two-year period provided for their redemption, and thereby caused the state's title thereto to become perfect, rather than purchase them from the state at the price paid for them by appellee.

Under the authority of Hart v. Backstrom, supra, the appellee by virtue of the patent issued in lieu of the first one in pursuance of chapter 185, Laws of 1926 (Hemingway's 1927 Code, sections 6087 to 6089, inclusive), acquired the state's title to the lots, unless, as stated, the consideration paid by the appellee for the lots was so small as to be tantamount to their donation by the state to the appellee. We do not think that Winton v. Day, 96 Miss. 1, 49 So. 264, sustains the position that it was a donation of the lots. The constitutionality of chapter 121 of the Laws of 1908 was under consideration in that case, particularly sections 1 and 2 of the act. It will be observed that that statute undertook to donate to a class of persons, described in the statute, certain forfeited tax lands, owned by the state, also described in the statute; and that the class of persons allowed to purchase under the statute was a preferred class; and that no others except that class would purchase. The statute only required a fee of two dollars and fifty cents to be paid by each patentee for his patent, regardless of the value of the land conveyed. Whether the quantity of land patented was one acre or a thousand acres, the patentee was only required to pay two dollars and fifty cents. It is evident from the statute that the two dollars and fifty cents fixed by its terms to be paid by each patentee was not intended as a consideration to the state for the conveyance of the lands, but as a fee for its service in issuing and delivering the patent. In other words, the statute undertook to make a donation pure and simple of certain forfeited tax lands to a preferred class of persons without any consideration therefor whatever; and the court held in doing so paragraph (u) of section 90 and section 95 of the Constitution was violated.

We have no such case as that here. Prior to the adoption of chapter 185, Laws of 1926 (Hemingway's 1927 Code, sections 6087 to 6089, inclusive), the sale value of forfeited tax lands owned by the state, when sold at more than one dollar and twenty-five cents per acre, was appraised and fixed by the Governor and the land commissioner, as provided by sections 2912 and 2916, Code 1906 (Hemingway's 1927 Code, sections 6080, 6084). Under section 2 of chapter 185, Laws of 1926 (Hemingway's 1927 Code, sections 6087 to 6089), lieu patents were authorized to be issued to the purchasers of urban forfeited tax lands held by the state whose patents were void, at a valuation appraised and fixed by the Governor, the attorney-general, and the land commissioner. Appellee's patent, issued on June 4, 1926, recites, among other things, that it was issued in lieu of a previous patent to appellee, and that all legal requirements had been complied with in its issuance. If that recital in the patent be true, it means that the Governor, the attorney-general, and the land commissioner, in good faith, appraised and fixed the value of these lots for sale. Appellee is entitled to the benefit of the presumption that the Governor, the attorney-general, and the land commissioner faithfully performed their official duties in fixing the sale value of the lots. Such presumption, if not conclusive, is at least prima facie true. Jackson County v. Neville, 131 Miss. 599, 95 So. 626. Appellant did not undertake to overturn that presumption. No evidence was offered to show bad faith on the part of the Governor, the attorney-general, and the land commissioner in the performance of their duties in appraising and fixing the value of the lots, and the execution of the patent to appellee.

Affirmed.

DISSENT BY: ETHRIDGE

ETHRIDGE, J. (dissenting).

I am unable to agree with the decision of the majority opinion in this case. The patent...