State ex rel. Kyle v. Dear, 37492

• Court: Mississippi Supreme Court
• Writing for the Court: ALEXANDER; LEE
• Citation: State ex rel. Kyle v. Dear, 209 Miss. 268, 47 So.2d 150 (Miss. 1950)
• Decision Date: 12 June 1950
• Docket Number: No. 37492,37492
• Parties: STATE ex rel. KYLE, Atty. Gen., v. DEAR et al.

Page 150

47 So.2d 150

209 Miss. 268

STATE ex rel. KYLE, Atty. Gen., v. DEAR et al.

No. 37492.

Supreme Court of Mississippi, in Banc.

June 12, 1950.

John W. Kyle, Atty. Gen., by John E. Stone, Asst. Atty. Gen., for appellant.

Avery & Putman, Jackson, Snow & Covington, Meridian, Flowers, Brown & Burns, Jackson, Harold Cox, Jackson, for appellees.

ALEXANDER, Justice.

The cases cited to support the suggestion of error while eventuating in different results are in point chiefly as indicating that the question of disparity in value as constituting pro tanto a donation remains an open question.

We have not taken into account any of the factors which may or may not ultimately support the answer of the appellee. There is no occasion for us to evaluate these factors. We went no further than to hold that the State had made at least a prima facie case and that the matter should be heard on its merits.

Suggestion of error overruled.

LEE, Justice (dissenting).

As much as I respect the judgment of my brethren, I must, with defence dissent against some of the conclusions reached in the decision of this case.

It is manifestly correct insofar as it absolves the members of the board of supervisors from any liability on account of the sale of timber. They were exercising a judicial function in making the sale, and in determining the price at which the timber was sold. Beginning with Paxton v. Baum, 59 Miss. 531, this principle has been recognized and reaffirmed throughout the years. See authorities cited on this point in the original opinion.

Hinds is the empire county of the state. It is the largest both in population and in wealth. The operation of its affairs is big business. The people, of course, choose their supervisors, who are the fiscal and governing authority of the county. Such officers are usually successful and outstanding business men.

The sixteenth section land here involved was in the wilds of Pearl River swamp. It had some timber on it which the Board decided to sell. The Attorney General had previously held that boards of supervisors were without authority to hire a timber cruiser to determine the timber holdings on such lands, and pay therefor out of sixteenth section funds. Biennial Report of the Attorney General of the State of Mississippi from July 1, 1939, to June 30, 1941. It was not claimed that the supervisors knew how to estimate stumpage. It is common knowledge that timber was in great demand. Consequently, the board let the timber buyers know--they advertised for bids in a large newspaper, the Jackson Daily News, in three issues December 10, 17 and 24, 1943. Although there was great demand for timber, only three bids were submitted at the January, 1944, meeting, one for $250, one for $350, and Dear's bid for $500. The board accepted the highest and best bid obtainable, and directed the president to execute and deliver the deed. On account of an error--the description had the wrong township--they later executed another deed to correct this error.

The original bill of complaint did not even charge the board with fraud on account of this transaction. On the contrary, the Attorney General agreed to a stipulation that the board 'believed then and believes now that it obtained a fair and reasonable value of the timber and the highest and best price available at the time and under the circumstances.'

I do not wonder that, since there was no controversy as to the good faith of the supervisors the learned chancellor promptly dismissed the bill. There was no evidence of either fraud or bad faith. No doubt if those gentlemen had sworn to their good faith in the proposition, any court would have believed them. But, they did not even have to swear to such fact--the Attorney General admitted it.

Thus the liability of the supervisors passes out of the picture. All are agreed that this was right. They were guilty of no fraud or bad faith. On the contrary, the perfect good faith of these capable and competent officers was conceded and adjudicated.

Where then do we find ourselves?

The Board had full authority to sell this timber. General jurisdiction of the subject matter of sixteenth section lands is conferred upon the board of supervisors by Section 6598, Code 1942, which provides in part as follows: 'The several counties wherein are situated any of such lands have, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control thereof, and of all funds rising from any disposition thereof heretofore or hereafter made; * * *'.

Express authority to sell the merchantable timber from sixteenth section lands is conferred upon the board by Section 6599, Code 1942, which reads in part as follows: 'The board of supervisors having control of any sixteenth section of land or any land taken in lieu thereof reserved for the support of township schools, are hereby authorized and empowered to sell the merchantable timber of any and all varieties, * * *'.

In accordance with these statutes, the board made the sale in good faith--they committed no wrong--they are not answerable for their act.

Now we come, in my opinion, to an untenable position: The state authorized the board to sell the timber. It held out such board as its agent. But two parties are necessary to make a trade, one to sell, and the other to buy. The state found no fault with its agent, the board, in selling it, but, through another of its agents, the Attorney General, it discovered a terrible fraud on the part of the buyer. I repeat that both the board and the buyer were necessary parties to the transaction. It is unthinkable to me that one should be exonerated and the other condemned.

The disparity between the price paid to the board, $500, and the price paid by the Cooperage Corporation, $4,000, thus, on paper, showing a profit of $3,500 to Dear, in my opinion, has catapulted us into grave error. This difference can be clarified when we look deeper into the facts, and carefully weigh one feature, which, it seems to me, has been entirely overlooked.

The map shows and the stipulation admits that this timber was located in an overflowed area, among sloughs and lagoons. Dear owned 'the adjoining property providing the sole access to these lands.' There was no road to this timber land, and there was no earthly way to get it out of the swamp except over the lands of Dear. A prospective buyer must needs take this difficulty into consideration. Likewise, the Board of supervisors. Just how would such purchaser remove the timber? I am mindful that Section 8419, Code 1942, provides for the establishment of a private way. But out of the maze of this procedure, the fact remains that such applicant must pay the damages, and the costs and expenses of the proceedings. Hence such purchaser would have been compelled to reckon with the great difficulty of procuring a right to way or easement from Dear. The board, in selling it, was likewise confronted with this serious obstacle, which, in a large measure, decreased the intrinsic value of the timber on account of its inaccessible location. Accessibility has much to do with value. A seventy-five foot lot on Capital Street might be worth $50,000, whereas a like parcel in a slough or lagoon in Pearl River swamp might not fetch $5.

From a due consideration of this question, I can readily see why the board 'believed then and believes now that it obtained a fair and reasonable value of the timber and the highest and best price available at the time and under the circumstances'. The power to sell necessitated an adjudication in regard to value. This was done in good faith. I see no reason to disturb it. But being willing to acquit the seller, I am unwilling to condemn the purchaser. L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 3, in my opinion, is not only in point, but completely decisive of this question. There the Court said in part:

'According to the agreed statement of facts, the timber in controversy was worth, in round numbers, the sum of $20,000, or rather, that said sum could have been obtained for it 'if the board of supervisors had possessed the authority to make a fee-simple title to the entire property, including the soil on which the timber and wood was growing.' It also appears from this agreed state of facts: 'The price paid by defendant for the said timber and wood were as much as could have been obtained on the market at that time for the same, in view of the facts that it was growing on sixteenth section lands, the right to cut and remove it was involved in some uncertainty, and the defendant was the owner of the leases.' The price paid for the timber was $1,550, inadequate, of course; but it is elementary that mere inadequacy of consideration alone is not ground for setting aside a conveyance of this character. Inadequacy of price must be connected with fraud or other circumstances which tend to bring about such inadequacy before the sale can be set aside by the courts. No other circumstance indicating fraud is alleged in the bill or contained in the agreed statement of facts.

'The determination of the price at which such timber shall be sold has been committed by the statute to the boards of supervisors, and in the absence of fraud or collusion the courts cannot interfere with their discretion in the matter. And, moreover, when we remember that these leases had 70 years and more to run, during which time the board could not sell, except or or with the consent of the lessee, the inadequacy of price is not so great as it would otherwise seem to be.' (Emphasis supplied.)

In that case the Lumber Company owned the lease. But, if someone else had purchased the timber, the buyer would have faced the question of trespassing on the Lumber Company's property, if he attempted to remove the timber. In Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3, this court approved the language used in the Dantzler...