State v. Woodruff

Decision Date30 October 1933
Docket Number29601
Citation150 So. 760,170 Miss. 744
CourtMississippi Supreme Court
PartiesSTATE v. WOODRUFF et al

Suggestion Of Error Overruled January 1, 1934.

APPEAL from chancery court of Hinds county, HON. V. J. STRICKER Chancellor.

Suit by Amos Woodruff, as trustee, and others holders of bonds of the Mississippi Levee District No. 1 against the state and others, to enforce a trust and an alleged lien on certain land. From an interlocutory decree the state appeals, and complainant cross-appeals. Affirmed in part, reversed in part, and remanded, with directions.

Affirmed in part, reversed in part, and remanded.

Lamar F. Easterling, of Jackson, special counsel for appellant, the state of Mississippi.

Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.

1 Pomeroy's Equitable Remedies, sec. 21; Wilson v. Wilson, 41 Ore. 459, 69 P. 923; Petroleum Co. v. Hurd, L. R. 5 P. C. (Eng.) 221; Naddo v. Bardon, 51 F. 493, 4 U.S. App. 642, 2 C. C. A. 335; Ryason v. Dunten, 164 Ind. 85, 73. N.E. 74; Neppach v. Jones, 20 Ore. 491, 26 P. 569, 849, 23 Am. St. Rep. 145; Comans v. Tapley, 101 Miss. 203, Ann. Cas. 1914B 313; Chase v. Chase, 20 R. I. 202, 37 A. 804.

We say that this delay that has been occasioned largely by the theory of the bondholders, has been prolonged to such an extent and over so long a period that when the case comes to trial upon the merits, if the report of the master be accepted as correct law, neither witnesses nor documents could be secured to combat and overthrow the holding of the master, but the state would be mulcted by the lack of evidence to combat the theory of the bondholders.

The state cannot be bound by the consent of its attorneys in the long delay to bring the cause to a final hearing, if the rights of the state have been prejudiced thereby.

Gibbons v. U.S. 19 L.Ed. 454; U. S. v. Kirkpatrick, 9 Wheat. 720; Dox v. Postmaster General, 1 Pet. 318.

L. F. Easterling and R. H. Thompson, both of Jackson, for appellants, Delta Development Company, W. F. Swan and Mary Swan.

The decree of the court below, dismissing these appellees, is correct and is supported by the decision of this court on former appeal.

Under the Acts of 1858 and 1867 and amendments thereto, practically all of the lands described in the exhibits to the amended bill were sold under said acts, either to the old levee board or the liquidating levee commissioner. It is our contention that, so long as said lands were held by the liquidating levee board, or its successors, under said previous sales for liquidating levee taxes, that the said lands under the positive provisions of the Acts of 1867 were exempt from taxation by the state for levy purposes or otherwise.

Woodruff v. State, 25 So. 487; Carlisle v. Yoder, 12 So. 257; McLemore v. Scales, 68 Miss. 47, 8 So. 844; Paterson v. Durfey, 68 Miss. 779, 9 So. 355; Paxton v. Land Co., 68 Miss. 739, 10 So. 77; Belcher v. Mhoon, 47 Miss. 613.

The act of the legislature, approved April 10, 1873, chapter IV of the Laws of 1873, is very illuminating on this subject. It shows the legislative intent to cure and perfect the liquidating levee titles.

Gibbs v. Green, 54 Miss. 492; Bell v. Coats, 56 Miss. 778; Outlaw v. Mayo, 1 Miss. Dec. 428.

It is true that the title of the purchaser at a judicial sale under a decree of foreclosure takes effect by relation to the date of the mortgage, and defeats any subsequent lien or incumbrance.

Ostenberg v. Union Trust Co., 23 L.Ed. 964; Birmingham News Co. v. Collier, 103 So. 839; Street v. Duncan, 117 Ala. 573, 23 So. 523.

There were no Levee No. 1 taxes due on said lands held by these appellees and other purchasers under Gibbs v. Green, defendants in the court below, under the decisions of this court prior to 1882.

Woodruff v. State, 25 So. 488; Paxton v. Land Co., 68 Miss. 739, 10 So. 77; Murdock v. Chaffe, 67 Miss. 740, 7 So. 519.

It will be observed that the former opinion restricts the issues in this case to a very narrow margin and inquiry. If the bondholders failed to move in the manner provided for under the contract, to enforce the collection of any No. 1 taxes legally due the No. 1 Levee Board, although the legislature had attempted to abate such taxes, the bondholders are barred by the six-years' statute of limitations.

Woodruff v. State, 25 So. 486.

Liquidating levee taxes constituted a first and paramount lien on said lands.

Complainants would not be entitled to recover for the reason that they did not offer to do equity and therefore the court could deny them any relief as to any such lands or taxes, if any could be pointed out. One who comes into equity must do equity. The liquidating levee taxes were a first and paramount lien on said lands, whether the lands were legally sold to the said boards or not. If the lands were struck off to Levee Board No. 1, by legal sale, say in 1872, the accrued and accruing liquidating levee taxes due thereon must have been paid by the Levee Board No. 1, or else said lands were subject to sale at any time to enforce the prior and paramount liquidating levee taxes accrued and accruing. After all, this suit presents but a contest between the holders of a first and paramount lien and mortgage on said lands and the holders of a second and subordinate lien thereunder, even in cases where the sales to the liquidating levee board were invalid and the sale of the same lands to the Levee Board No. 1 was valid. In all such cases the complainants must offer to do equity. This they have not done in either the original or the amended bill.

Green, Green & Jackson, of Jackson, for appellees and cross-appellants, Holders and Owners of No. 1 Levee Bonds and Coupons.

The liquidating levee board did not acquire a title unless the sale was valid. It would not acquire a title until the period of redemption, two years after the sale, had expired, and upon redemption the board was required to collect any levee taxes that might have accrued on the land during the time it was held by the liquidating levee board, just as if it had continued to be the property of the original owner, and thus No. 1 taxes, even if inferior in lien to the liquidating levee board taxes, were required to be paid when the redemption took place from the liquidating levee board.

The master erred in giving effect to the claims of priority of title of liquidating levee board. The question of priority of title contained in the foregoing quotation could apply only to the rights of No. 1 Levee Board and liquidating levee board under their respective charters, Laws of 1871, page 37, and Act of 1866-7, page 237, and have no application to the rights of No. 1 bondholders as against the state or the purchasers of the lands under the Green v. Gibbs decree, nor under chapters 105 and 108, Acts 1876, and Chapter 23, Acts 1888, which create a new relation -- a merger of all the titles and claims of title of No. 1 Levee Board and liquidating levee board and No. 2 Levee Board and the state in the state, as a unit, as trustee.

No bonds or coupons are barred by the statute of limitations.

The bill does not seek recovery on the bonds and coupons as a general contractual liability of No. 1 Board, or of its successor the state, but to enforce a trust by subjecting the trust estate to the payment of the bonds and coupons for whose payment the trust was created, and to enforce liability of the state, as trustee, for a breach of that trust.

Woodruff v. State, 162 U.S. 291, 40 L.Ed. 973.

The vesting title in the state did no harm to creditors. The levee board was abolished, and the state assumed the management of the trust fund for creditors, employing its officials for that purpose.

Woodruff v. State of Mississippi, 77 Miss. 108, 110; Forsdick v. Comms., 76 Miss. 868; Shotwell v. Railway, 69 Miss. 541; Burrough Land Co. v. Murphy, 95 So. 515, 131 Miss. 526; County of Morgan v. Allen, 102 U.S. 489, 26 L.Ed. 498; Cooper v. Cooper, 61 Miss. 696; Peoples v. Acker, 70 Miss. 356; Edwards v. Kelly, 83. Miss. 144; Westbrook v. Munger, 62 Miss. 316; Chapter 23, Acts of 1888.

The state has never accounted for the trust; though required by 77 Miss. 110 to account, the state has never done so but has fought all liability and is still fighting.

Chapters 105 and 108, Laws of 1876, and chapter 23 Acts of 1888, were new and independent legislative provisions to provide for the conflicting sales for levee taxes in the Delta.

Owen v. Railroad Co., 74 Miss. 826; Creegan v. Hyman, 93 Miss. 495; McCulloch v. Stone, 64 Miss. 378; Burroughs Land Co. v. Murphy, 95 So. 515; Shotwell v. Railroad Co., 69 Miss. 541.

Under chapters 105 and 108, Laws of 1876, there was created a new statutory trust relation between the state and No. 1 bondholders, and when the state, in the execution of the active trust, passed chapter 23, Laws of 1888, whereby the title of the state to the lands which had been charged with No. 1 taxes and struck off and sold to No. 1 Board were conveyed to the purchasers under the Green v. Gibbs decree, there was a new statutory liability of...

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