Willoughby v. Caston

• Decision Date: 21 February 1916
• Citation: 72 So. 129,111 Miss. 688
• Court: Mississippi Supreme Court
• Parties: WILLOUGHBY v. CASTON

72 So. 129

111 Miss. 688

WILLOUGHBY v. CASTON

Supreme Court of Mississippi

February 21, 1916

March 1916

APPEAL from the chancery court of Marion county, HON. R. E. SHEEHY Chancellor.

Suit by E. G. Caston against T. R. Willoughby. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Suggestion of error overruled.

A. E Weathersby, B. S. Silverstein, P. Z. Jones and Mayes & Mayes, for appellant.

Mounger & Ford and Whitfield & Whitfield, for appellee.

OPINION

STEVENS, J.

This cause was affirmed on a former day of this term without a written opinion. An elaborate suggestion of error has been filed, and in view of the questions so earnestly pressed by counsel, we proceed to state briefly the reasons which induced us to affirm the case. The case, as presented by the pleadings, is as follows: E. G. Caston, appellee herein, as complainant in the court below, exhibited his bill in the chancery court of Marion county to confirm his title to certain lands therein mentioned, basing his claim of title on a patent issued to him by the state of Mississippi December 12, 1905. The bill prayed that the claim of title of the defendant T. R. Willoughby be canceled. The defendant answered the bill and made his answer a cross-bill denying the material allegations of the original bill, denying that the state of Mississippi had any title to convey to Mr. Caston, and the cross-bill deraigned the alleged title of Mr. Willoughby from the United States of America by mesne conveyances to cross-complainant, and also averred the existence of title by adverse possession. Mr. Caston, the original complainant, claimed that the lands were conveyed by the United States to the state of Mississippi under the act of Congress approved September 28, 1859 (9 Stat. 519, chapter 84), commonly known as the Swamp and Overflowed Land Act, and that the state of Mississippi, without parting with the title to any one else, patented the land to Mr. Caston in December, 1905. The cross-complainant averred that the United States conveyed the lands in question to one Josiah Holmes December 24, 1858, and that cross-complainant acquired title through a chain of conveyances tracing to Josiah Holmes, and that he and those under whom he purchased had been in the actual adverse possession of the land for more than ten years. The land commissioner of the state was made a party to the suit and given an opportunity to defend Caston's title. On final hearing the court decided the case in favor of appellee Mr. Caston and canceled the claim of Mr. Willoughby as a cloud upon complainant's title. From this decree Willoughby, as defendant in the court below, prosecutes this appeal.

The evidence in the case shows that Josiah Holmes entered the lands from the United States government December 24, 1858, but the records of the land office further show that this entry was canceled December 20, 1897, and that no patent was ever issued to Josiah Holmes. The evidence further shows that the land was donated to the state by the act of Congress approved September 28, 1850; that these lands were selected by the state and listed in what is known as list No. 29; that this list was not approved by the Secretary of Interior at Washington, D. C., until December 31, 1900, when the Secretary of the Interior approved list No. 29, which included the lands in controversy, and on February 16, 1901, certified his approval so as to authorize the issuance of the patent.

It thus appears by the undisputed record evidence in the case that the proper authority of the United States government did not approve the selection of these lands as swamp and overflowed lands, and therefore within the grant of the act of September 28, 1850, until a short time prior to the date of the issuance of patent by the state land commissioner to appellee. The material inquiry, therefore, is whether the statute of limitations can be invoked by appellant in this case; or, in other words, whether the statute began to run until the Secretary of the Interior approved the selection as swamp and overflowed land and thereby perfected the state's claim.

Without a prolonged discussion of the question, we hold that appellant did not acquire title by adverse possession for the reason that the statute of limitations cannot be invoked by appellant in aid of his title. It may be conceded that the act approved September 28, 1850, was a grant in praesenti, and that if the land was in deed and in fact of the character contemplated by the act, that is, wet or overflowed lands, the beneficial interest has been in the state of Mississippi since the approval of the act. At the same time, the grant, as stated by the United States supreme court, was in process of administration, and the land was subject to the jurisdiction of the Land Department of the United States government until the patent was issued. It is well settled that the statute of limitation here invoked does no run against the United States government, and, since January 24, 1877, does not run against the state of Mississippi. It is true that Josiah Holmes entered these lands in 1858, and even though he may have undertaken to convey the title to one who continued his possession, it yet remains that the homestead entry of Josiah Holmes was subsequently canceled by the very authority that permitted him to enter the lands. Josiah Holmes entered by...