Opinion
No. 27408.
November 19, 1928. Suggestion of Error Overruled December 3, 1928.
1. EVIDENCE. Certified copy of book of original entries of United States Land Office is admissible in evidence of facts indicated therein; issuance of patents and entries on original tract book of the United States Land Office control over certified copies.
While a certified copy of the book of original entries of the United States Land Office may be received as evidence of the facts indicated therein, and in the absence of any showing to the contrary will be accepted as being correct, yet it is the issuance of patents and entries on the original tract book of original entries that are really controlling.
2. TAXATION. Government property is not subject to taxation under state law; before tax title can be confirmed, it must appear that federal government had parted with title to property before sale.
Property belonging to the United States government is not subject to taxation under the laws of this state, and the state has no power to tax property of the United States government, consequently tax assessments, sales, and confirmation proceedings showing such sales are void. Before a tax title can be confirmed, it must appear that the United States government has parted with its title to the property assessed and sold for taxes at the time such proceedings were taken, and if it has not so passed such proceedings are invalid.
3. NOTICE. Party finding deed showing adverse interest when investigating records is charged with notice given therein and what reasonable inquiry would have disclosed.
Where a party investigating the records finds a deed showing an adverse interest to his title duly filed and recorded, he is charged with such notice as such deed gives, and such as reasonable inquiry from the facts disclosed would have disclosed, although such chain of title disclosed by said deed is not disclosed in the chain of title he is investigating. In such case such notice is actual, not constructive, notice.
APPEAL from chancery court of Jackson county, HON. V.A. GRIFFITH, Chancellor.
H.P. Heidelberg, for appellant.
The assignment of errors has two grounds, to-wit: First, that the court below erred in overruling the appellant's objection to a part of the evidence of appellees and second that the court below erred in dismissing the bills of complaint and refusing to grant appellant any relief whatever.
In the discussion of the cases we will consider the assignments of error as treated together and will take up and consider the cases from the standpoint of the law as we believe controls the cases, first from the standpoint of the Federal statutes and second as to the effect of the recording statutes of the state of Mississippi, that is to say whether or not the appellant stands in the position of an innocent purchaser for a valuable consideration without notice either actual or constructive.
In the begining we did not take it that appellees contend or will contend that the state courts in proper cases do not have the power and authority to set aside or annul a patent from the United States Government for lands. We believe this principle is too well understood and too well known and recognized to require citation of authorities. 32 Cyc. 1052-1054; Hester v. Kembrough, 12 S. M. 659; Moyer v. McCullough, 1 Ind. 329; U.S. v. Detroit Timber Co., 200 U.S. 321, 50 L.Ed. 499; Doe v. Watts, 7 S. M. 363.
The appellant's relying and acting upon a certified transcript from the United States land office, showing the lands involved herein to be at the date of his purchase and for more than sixty-two years before that time as segregated from the public domain; that the same had not been subject of entry since July 5, 1853, purchased said land upon the faith, strength and credit of a certificate from the proper land office and the only thing lacking in so far as the records showed was the obtaining and recording in the land deed records of Jackson county, the original or certified copy of the patent as called for in said entry and then appellant would have been vested with a full, complete and perfect legal and equitable title to the land. Under the condition that the record title to this land showed to be, we submit that appellant was in the position of: "One who has done everything which is necessary in order to entitle him to receive a patent for public land, has even before the patent is actually issued by the land department, the complete equitable estate in the land which he can sell and convey or mortgage same." Meyers v. Croft, 13 Wall. 291, 20 L.Ed. 562; Marks v. Dixon, 50 How. 501, 15 L.Ed. 1002.
Appellant had a right to rely upon the United States land office records and it appearing that under the entry in question as shown by the certificate of the United States land office official that the entry was valid, lawful and intact and the only thing necessary was to apply for and procure the patent, was surely within his rights in purchasing the land upon the strength, faith and credit of the United States land office records, these imports ceriety and are to be relied upon and after the right of the patent was complete and whether issued or not appellant brought himself within and the rule in some respects is analogous to the situation and principle in Dale v. Griffith, 93 Miss. 573, 46 So. 543. See Gragg v. Cooper, 150 Cal. 584, 89 P. 346; Godwin v. McCabe, 75 Cal. 584, 17 P. 705; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927; Hewling v. Blake, 110 Miss. 225, 70 So. 247; Dees v. Kingmon, 119 Miss. 119, 80 So. 528; Teddlie v. McNeely, 29 So. 247; Wirth v. Branson, 25 L.Ed. 86; Widdescombe v. Childers, 31 L.Ed., 427; Hendricks v. A.T.T. R.R. Co., 42 L.Ed. 320; Godkin v. Cohn, 25 C.C.A. 557; Stark v. Starr, 18 L.Ed. 925; LeMarchel v. Teagarden, 152 Fed. 662; Graham v. Great Fall Water Power Townsite Co., 30 Mont. 393, 66 P. 808.
All of these cases show that there must be a carefully prescribed course followed in order to invalidate and set aside an apparent valid first entry and that it cannot be done by a mere stroke of the pen. But in the case at bar there was never even a pretended cancellation made but simply the word "error" written across the entry when in the land office officials at Jackson had exercised the smallest degree of inquiry as they were required to do before allowing another entry upon the land in question they would have ascertained the fact that suit No. 3066 on the docket of the chancery court was then pending wherein Brannon was contesting his rights to the land with the heirs of one of the three parties, who the Tract Book showed had obtained title from the United States Government. So, we submit that the entry of July 5, 1853, was never cancelled and so far as the records that were on file in the Jackson, Mississippi, land office (and under the Federal statute, the records of the office prevailed until changed or corrected in the manner prescribed by statute) so said entry existed until that office was closed some three years ago and its records removed to the General Land Office at Washington. Young v. Hanson, 95 Ia. 717, 64 N.W. 654; Peyton v. Desmond, 129 Fed. 1, 63 C.C.A. 651; Risdon v. Davenport, 4 S.D. 555, 57 N.W. 482; Louis v. Shaw, 57 Fed. 516; Durango v. Evans, 80 Fed. 425, 25 C.C.A. 523; United States v. Detroit Timber Co., 200 U.S. 321, 50 L.Ed. 499; Guaranty Savings Bank v. Bladow, 176 U.S. 448, 44 L.Ed. 540; Parsons v. Venzke, 164 U.S. 89, 41 L.Ed. 360; Puget v. Brown, 7 C.C.A. 643; Martinson v. Marzolf, 15 N.D. 471, 108 N.W. 801; Harmon v. Clifton, 51 Ia. 36, 50 N.W. 541; Wilhite v. Barr, 67 Mo. 284; Duluth R.R. Co. v. Roy, 173 U.S. 587, 43 L.Ed. 820; Starke v. Mather, Walk. 181 (Miss.), affirmed 7 L.Ed. 67; Ard v. Brandon, 156 U.S. 527, 39 L.Ed. 524; Germania Iron Co. v. James, 32 C.C.A. 348; Lindsey v. Hawes, 2 Black 554, 17 L.Ed., 265.
Under the Federal statute a certificate of the register or receiver of any land office is evidence of the entry of land in his district. There are a number of cases announcing this doctrine but in our opinion the clearest and most concise of the rule is found in Gaut v. Galloway, 4 Petterman 332, 7 L.Ed. 876.
S.A. Witherspoon and H.H. McClelland, for appellee.
The answers of appellees deny that any title passed out of the Government until 1920. Here the issue is clear and unequivocal. The proof shows there was no disposition of the land other than to the patentees in 1920. The Hawthornes and Goode did not enter said land, but they filed their Choctaw scrip on an entirely different tract of land. A clerical error could not rise to the dignity of an entry. There must be an affirmative act on the part of the entrymen and an application filed in the land office to locate on a specific tract of land.
Standing alone the certificate of the register of the Mississippi Land Office, filed in the office of the chancery clerk of Jackson county would be prima-facie evidence of an entry of the land by the Hawthornes and Goode, but when taken in connection with all the facts, abundant facts, showing the circumstances surrounding the application filed by them for location of Choctaw scrip No. 465, it stands out clearly, unequivocally and undisputable that there was no entry of said Choctaw scrip on the land in suit. There was no entry, nor was there any intention to make such entry, either by the said Hawthornes and Goode or by the clerk or officer who actually entered the clerical mistake shown. It was a mere error in posting; the correct entry being also made. This error did not appear in the records of the General Land Office at Washington. There then appeared the correct history of the filing and location of this scrip No. 465 by the Hawthornes and Goode.
There is no evidence, binding on these appellees, that there were any acts of ownership by appellant and his alleged predecessors in title other than that certain deeds had been executed; that there had been intermittent failures to pay taxes, giving rise to sales for taxes, and that suits to quiet titled had been filed. The allegations of the bill allege what might be termed a scrambling possession of wild lands. (Construing the pleading most strongly against the pleader.)
There was no proof offered (and it would have been irrelevant) that any one was ever in possession of the land, other than of course the presumption arising in favor of appellee McClelland and Mr. Bizzelle's possession. (Irrelevant, for time does not run against the sovereign.) There could be no adverse possession against the United States. The decree in the suit of L.I. Brannon recites that the said Brannon had been in adverse possession for ten years, but this is a mere ex parte proceeding. The United States was not and could not have been made a party thereto (and the appellees claim through the United States subsequent to such suit), and the recitals in the decree in that case as to adverse possession could have no probative value for the purposes of appellant's untenable theory about prescription, even though it could be urged against the title in the United States. See Rabb v. Board of Supervisors, 62 Miss. 589; Bates v. Aven, 60 Miss. 955; Clements v. Anderson et al., 46 Miss. 599.
In Caruth v. Gilliespie, 109 Miss. 679, cited by appellant, the facts were strongly indicative of a grant or title by the state of Mississippi, affirmative acts on the part of the state acquiescing in the claim of an outstanding title. In the present case, the facts show there was no entry, as a matter of record, and, too, the title was in the United States and not the state. See Barnell v. Broderick, 113 Pet. 450; Redfield v. Parks, 132 U.S. 239; Gibson v. Chateau, 13 Wall. 92; 32 Cyc. 1029; U.S. v. Dastervignes, 118 Fed. 199; Bagnell v. Broderick, 113 Pet. 458, 10 L.Ed. 235; Sweat v. Corcoran, 37 Miss. 513.
Argued orally by H.P. Heidelberg, for appellant.
T.L. De Lashment, appellant here, complainant in the court below, filed two suits against H.H. McClelland et al., appellees here, defendants in the court below, for two separate tracts of land situated in the east half of section 7, township 4, range 4 west, which suits were consolidated and tried together by agreement of counsel.
The appellant's cause of action is founded upon an alleged clerical mistake in entering upon the tract book of the United States Land Office then at Augusta, Miss., an Indian land warrant, about the year 1853. It appears that about the 6th day of October, 1845, a Choctaw Indian land warrant was issued to Eah-to-nah, a Choctaw head of family, said warrant being numbered 465; and on July 5, 1853, this scrip was assigned to Joshua K. Hawthorne, Joseph R. Hawthorne, and Garland Goode by Kon-che-tubbe, special Indian agent, Bowman certifying that said Kon-che-tubbe was the proper representative of Eah-to-nah, who was dead. The assignees of this scrip, Hawthorne and Good, made application and located it on the east half of section 7, township 5, range 4. Patents were thereafter issued from the United States government to said assignees to the east half of section 7, township 5, range 4 west. The specific land entered under this scrip contained a fraction over one hundred and sixty acres, being seventy-eight one hundredth acres surplus which was paid for by Hawthorne and Good under the requirements of the United States Land Office.
It appears that on the tract book of original entries kept in the Land Office at Augusta, Miss., there was an entry showing that Choctaw certificate No. 465 above mentioned was issued on the east half of section 7, township 4, range 4, but at some later date there was written on the margin of said book of original entries on the list containing this entry the word "error, see East half of Section 7, Township 5, Range 4, West." There was nothing to show who made this entry, nor when it was made, nor for what purpose; it not being signed by anybody, and being made in a different colored ink from the original entry.
About the year 1916, a certified copy of the tract book of original entries for lands lying in Jackson county, Miss., was made up and certified to by W.F. Cummins, Register of the United States Land Office at Jackson, Miss., and in making up this certified copy, Cummins failed to copy the entry showing the error, and the record was filed in the chancery clerk's office in Jackson county, Miss., without said notation thereon.
After this controversy arose, and after patents to the lands in the east half of section 7, township 4, range 4, were filed, attention was called to the United States Land Office at Washington, D.C., where the land office records formerly kept at Augusta, and later at Jackson, Miss., had been sent after the land office in said territory had been closed by the Department of the Interior, and it was found that the entries of error above mentioned existed upon the book of original entries. It further appears that patents for the east half of section 7, township 5, range 4, were duly issued by the United States government to the assignees of the Indian land scrip above mentioned.
There were tax sales made of east half of section 7, township 4, range 4, by the state authorities, and there were some suits in the chancery court to confirm tax titles thereunder; but, at the time such assessments, sales, and confirmations of title to said land were made, this land was in the United States government, and patents therefor were not issued until 1920, when patents to the appellees were issued.
In investigating the title of appellant at the time he was purchasing the claims of title through which he claims, it was discovered that appellees, H.H. McClelland and wife, had executed a mortgage or trust deed upon a portion of the land embraced in this suit in favor of a financial institution in Birmingham, Ala., and this was called to the attention of the purchaser at the time the investigation was being made, but no title was then of record in McClelland showing by what title or right he claimed title, but later the McClelland patent was placed of record.
After the complainant introduced proof, the defendants introduced the patents to Hawthorne and Good showing the grant of east half of section 7, township 5, range 4, by virtue of said Indian land certificate No. 465 above mentioned, and the receipts issued by the land office for the surplus above mentioned, and also the entry of defendants (appellees here) of the lands with the United States government under the homestead laws and patents issued to them conveying the title to them.
The chancellor dismissed the complainant's bill, and from that decree this appeal is prosecuted.
It is contended by the appellant (1) that the court below erred in overruling appellant's objection to evidence offered by appellees, and (2) that the court erred in dismissing complainant's bill and refusing the complainant any relief whatever.
It is contended that as the original entry was made on the United States tract book of original entries showing the location of the lands in the east half of section 7, township 4, range 4, this segregated the lands from the public entries, and that, whether it was an error or not, it could not be corrected without notice to the parties claiming rights under such entry.
It will be remembered that the entry was made on the original tract book of entries also as the east half of section 7, township 5, range 4 west, and that this entry was followed up by a grant of patent, and that these were placed upon the list containing the entry as the east half of section 7, township 5, range 4 west.
The whole trouble appears to be that the register of the Land Office, in making up the certified copy of entries in Jackson county, Miss., failed to note the entry of error, above mentioned, on the list he was making up and certifying, and that his certified copy was filed in the chancery clerk's office in Jackson county, and was used in making abstracts and examining titles to see whether the land had passed out of the United States government. The entry mentioned does not show the date of any patent to the appellant or those through whom he claims.
While the certified copy of the book of original entries may be received as evidence of the facts indicated therein, and, in the absence of any showing to the contrary, will be accepted as being correct, yet it is the issuance of patents and entries on the original tract book of original entries that are really controlling.
Therefore, when we take all that could have been learned by proper inquiry, it appears that the title to the land in controversy had never been divested out of the United States government prior to the entry and perfecting of the rights of the appellees under their entry, followed by patents issued to them by the United States government.
The property belonging to the United States government, it was not subject to taxation under the laws of this state, as the state has no power to tax property of the government. It follows, therefore, that the assessments, sales, and confirmation proceedings were void. Before a title acquired at a tax sale can be confirmed, it must appear that the United States government has parted with its title to the property assessed and sold for taxes, and if it has not so passed, any confirmation proceedings are invalid.
We think that the appellant's notice of the deed of trust or mortgage to the Birmingham savings institution, being actually found upon the records by his attorney in investigating the title and called to appellant's attention by said attorney, called for further inquiry, which, if it had been made, would have disclosed the equity in the appellees, the McClellands, and would have shown that the title had never passed from the United States government.
It is true that a person who does not find a deed of record which is outside of his chain of title is not bound by it, and is under no duty to hunt beyond his chain of title which he is investigating, where that chain of title appears to be complete and perfect. But, where he actually sees a deed of record affecting the property he is buying or acquiring a lien upon, he must make such inquiry as is necessary to disclose what right such person is claiming through such instrument, and if reasonable inquiry will disclose something that will defeat the title being investigated, that will not be constructive notice, but actual notice of a claim, and he will be bound by what is disclosed in such a case.
We do not think the case before us is a case for holding the patentees to be trustees for the complainant. We recognize there are cases in which the patentees will be treated as trustees of the legal title for the benefit of the owner of the equitable title. But the record before us does not present a case for the application of this doctrine.
The judgment of the court below will therefore be affirmed.
Affirmed