Opinion
No. 34147.
May 13, 1940.
1. TAXATION.
A tax sale of land to the state on September 4, 1933, in violation of statute requiring sale to be made either on the first Monday of April or the third Monday of September of that year was void (Laws 1932, Ex. Sess., chap. 383, sec. 9).
2. TAXATION.
The principle that only the state may have a patent canceled on the sole ground of fraud committed on its land commissioner in the procurement thereof does not preclude former owners of land from having a patent canceled in their own right as a cloud on their title on the separate ground that a tax sale to the state was void as having been made on a date not authorized by law (Laws 1932, Ex. Sess., chap. 383, sec. 9; Laws 1934, chap. 196).
3. TAXATION.
In action to cancel patent to land purchased by the state at void tax sale and subsequent conveyances as a cloud on title, former owners of land in answer to a subsequent vendee's contention that he was an innocent purchaser for value without notice were not prevented from proving that a fraud was perpetrated on the state in procuring the patent and that notice thereof was furnished in patentee's application or from emphasizing the grossly inadequate price paid to the state as disclosed in the recorded patent.
4. TAXATION.
In action to cancel patent to land purchased by the state at tax sale and subsequent conveyances as a cloud on title, defendant could not successfully contend that it was an innocent purchaser for value without notice even in the absence of any notice of fraud perpetrated on the state in procuring patent, where tax sale was made on a date not authorized by law and thus disclosed that the state had acquired no title and could not convey any by patent issued to defendant's vendor (Laws 1932, Ex. Sess., chap. 383, sec. 9; Laws 1934, chap. 196).
5. TAXATION.
Plaintiffs, whose possession of land as it existed at time of tax sale in 1933 was never invaded or disturbed until defendant began cutting timber from land after December 22, 1936, were not required to commence an action to cancel a patent and conveyances until within two years thereafter, and they were not required actually to occupy the land in the meantime by residing thereon in order to have it in their possession and under their control so as to prevent the running of the two-year statute of limitations (Laws 1934, chap. 196).
6. CONSTITUTIONAL LAW.
The state has no constitutional power to require a person to commence an action to recover property owned by him when he is in possession and enjoyment of all rights claimed by him in regard thereto.
7. PUBLIC LANDS.
Until a person's possession of land is invaded or disturbed by a purchaser at tax sale or by a subsequent vendee of such purchaser, the statute requiring an action to cancel a patent and conveyances to be commenced within two years after April 4, 1934, does not begin to run (Laws 1934, chap. 196).
8. APPEAL AND ERROR.
Plaintiffs seeking to recover the value of timber wrongfully cut by defendant were not bound by the price paid by defendant and would have been entitled to prove that it was worth more, but where they did not complain of the amount of the decree rendered in their favor against defendant in the sum of $700, defendant could not complain on appeal, in absence of proof that timber was worth less than the price which defendant had recently paid for it.
APPEAL from the chancery court of Calhoun county; HON. L.A. SMITH, SR., Chancellor.
Stone Stone of Coffeeville, Kermit R. Cofer, of Water Valley, and Patterson Patterson, of Calhoun City, for appellant.
This record does not contain one syllable of notice, actual or constructive, to Bruce Company of any rights of the appellees in the timber on this place.
It is true that the court evolved a notice from what the court denominated the void and fraudulent application for the patent of Oscar Davis to the state for the purchase as constituting notice to Bruce, but we are prepared to meet this argument but we do refer to it to absolutely confirm our statement above that the record contains not one syllable of real notice, actual or constructive.
We make another announcement and that is that there was not one word in this record constituting a showing as to the value of the timber. Now we do not for a moment concede that Bruce was liable for the value of the timber; nevertheless we can argue that there was a total failure in showing value of the timber. The court also in his dictated opinion in this case admitted that there was no showing of the value of the timber except what the court had admitted over our objection, and that was the testimony of Bruce's bookkeeper that the record showed $700 for the timber. We submit that this was not a showing of the value as to the timber, but the main proposition, of course, is that they have not shown any reason for any decree against Bruce for anything.
From the very beginning the defendants, Oscar Davis and the E.L. Bruce Company, a corporation, resisted, with every means at their command, the effort of the appellees, the complainants, to claim the invalidity and fraud of the patent from the state to Oscar Davis, and their effort to dodge our statute by claiming a scrambling possession of the land and basing it on the ridiculous claims that some son-in-law of an heir-at-law of Mrs. Gullick, the pioneer ancestor, had worked a few rows of corn on this place. We took the position that the invalidity or not of this patent was not a proper issue in this case and that under the proof in this case these parties were out by the statute of limitations.
We have conceived the idea that the best argument that we can make against the decree of the splendid chancellor is contained in two recent decisions of the court. The first case is Reliance Investment Company v. Johnson, 193 So. 631, decided February 12, 1940, and we quote the last paragraph but one of the decisions of the Supreme Court; "The property came to the appellant by mesne conveyances from a patentee from the state. The appellees claim and introduced evidence to prove (1) that the patent was fraudulently procured from the state; and (2) that fraud appears in the execution of the deeds in the appellant's chain of title after the patent from the state was executed. It is true that a complainant under Section 402 of the Code must show either a legal or an equitable title to the land described in the bill of complaint before the court will entertain the bill or grant the relief therein prayed. The appellant's evidence disclosed a prima facie title in it to the land, and the appellees' evidence does not disclose facts which render any of the deeds in the appellant's chain of title nullities. They are all valid unless and until set aside at the complaint of the grantors therein. The validity vel non of the patent from the state can be challenged under Sections 6019 and 6020, Code of 1930, only in a proceeding instituted for that purpose by the land commissioner. Patterson v. State, 177 Miss. 227, 170 So. 645. If any of these deeds were void, and not merely voidable, a different question would be presented, as to which we express no opinion."
The other decision is Jones v. Russell et al., 194 So. 290.
C.A. Bratton, of Oxford, for appellees.
There are really but two issues involved before the court on the pleadings in this case.
The original bill charged that the sale of the land to the State of Mississippi, which was made on the fourth day of September, 1933 for the 1932 tax, was illegal and void, for the reason that "it was made on a date different to that authorized by law."
It will be observed that the Board of Supervisors at the regular August, 1933, meeting entered an order direcing the sheriff to sell all property on which the tax for 1932 had not been paid. Accordingly, the sheriff did advertise and sell the land on that date, and this particular property was struck off to the State of Mississippi, which was in violation of Chapter 383, Laws of Extraordinary Session of 1932. Our court has specifically held in two cases that a sale of the property made prior to the 3rd Monday in September, which was the date fixed by Chapter 383, supra, is void.
Smith v. Hendrix, 178 So. 819; White v. Noblin, 183 So. 914.
In Hatchell v. Thompson, 165 So. 110, Mr. Justice Ethridge speaking for the court said: "It is the settled rule in this state that all the requirements of law for the sale of property for taxes must be complied with, and one relying upon a tax title must show its validity."
Dunbar v. Interior Lbr. Co., 102 Miss. 623; Day v. Day, 59 Miss. 318.
The second question presented for the court to determine according to the pleadings was the plea of the statute of limitations, which is Chapter 196, Laws of 1934.
The positive testimony in the case which is undisputed is that the tenants in common were in possession of the land for the years 1933, 1934, 1935, and 1936. The possession of one tenant in common is for all.
This court has specifically held that where the original owner is in possession in person or by tenant that the statute of rest, Chapter 196, Laws of 1934, has no application.
Russell Investment Corp. v. Russell, 182 So. 102; White v. Noblin, 183 So. 914.
In the case of Elliott v. Pearl, 35 U.S. (10 Pet.) 412, 9 L.Ed. 475, the supreme court said, "A fence is not indispensable to statutory possession of land. The erection of a fence is nothing more than an act presumptive of an intention to affirm an ownership or possession of the property; but there may be many other acts which are equally evidencive of such an intention, such as entry upon land and making improvements thereon, raising a crop of corn, etc."
Coming now to the question as to proof as to the value of the timber cut and removed from the land in question by Bruce Company, appellees. There was objection on the part of the defendant, Bruce, to the introduction of the testimony of the witness, Kirby, the bookkeeper for the Bruce Company, as to the amount paid by the Bruce Company for the timber on the land. The complainant attempted to show the value of the timber by certain lay witnesses, but failed. They then introduced Mr. Kirby, the bookkeeper, and asked him what the Bruce Company paid for the timber, to which he replied, $700.
We have been unable to find any Mississippi authority in point, but we do find in 13 Enc. of Evidence 447, this language: "The price actually paid at a bona fide sale of property, the value of which is in issue, may be proved as an aid in arriving at the value."
Southern Ry. Co. v. Williams, 38 S.E. 744; Swanson v. K.W.R. Co., 89 N.W. 1088.
It was the contention of the complainants in the court below and is still our contention; "That knowledge of the law is imputed to all men." When the land in question was sold on a date different to that authorized by law, and one is patenting it from the state, or buying from the original patentee, it is his duty to investigate and see that the sale was in all respects legal and valid. If he failed in this respect, he can't be an innocent purchaser for value.
The supreme court in the case of State ex rel. McCullen, Land Commissioner, et al. v. Adams et al., 188 So. 551, the court speaking through Mr. Justice McGehee said: "Since Chapter 174 of the Laws of 1936 requires the filing of an application under oath, giving the information called for therein as a condition precedent to the right to obtain a patent, such application constituted a part of the patentees muniment of title, and where the appellee, John Gordan, as vendee of the patentee, was charged with notice." In this case the land was patented by Oscar Davis, one of the codefendants, he having made an application to the Land Commissioner, to which reference has heretofore been made, and a patent was issued wherein he paid only $80 for the 160 acres of land left, Bruce Company being a vendee of the patentee, Oscar Davis. Therefore, on the authority of State v. Adams, supra, we respectfully submit that Bruce Company were not innocent purchasers for value without notice.
Argued orally by W.I. Stone, for appellant, and by C.A. Bratton, for appellees.
Mrs. Mary Jane Gullick, deceased, owned at the time of her death, on August 1, 1930, the 160 acres of land from which the appellant cut and removed the timber involved in this suit, and which land she had used and occupied as a farm for approximately seventy years, and until the dwelling house thereon was destroyed by fire. The land was not inclosed by fence, due to the fact that the stock law was observed in the locality where the same was situated. After Mrs. Gullick died, intestate, leaving the appellees as her sole heirs at law, they took charge of the land and paid the taxes thereon until the year 1933, and then allowed the same to become delinquent. Thereupon, the tax collector proceeded to advertise and sell the land for the taxes assessed and delinquent for 1932. The sale was made to the State on September 4, 1933, in violation of Section 9 of Chapter 383 of the Laws of the Extraordinary Session of the Legislature of 1932, which required such sale to be made either on the first Monday of April or the third Monday of September of that year, and was therefore void. Smith et al. v. Hendrix, 181 Miss. 229, 178 So. 819; White v. Noblin, 183 Miss. 92, 93, 183 So. 914.
Appellees remained in possession of the land after the tax sale, and during the years 1933 and 1934 caused about ten acres thereof to be cultivated by tenant, and likewise a small portion during the years of 1935 and 1936, when some hay was also harvested, there not being much of the land then in a state of cultivation, after the improvements had been destroyed by the fire.
There was no change in the character of their possession of the land after the death of Mrs. Gullick until subsequent to the issuance of a patent to Oscar Davis by the State on December 3, 1936, and his sale of the timber thereon to the appellant, E.L. Bruce Company, and the sale of the land thereafter by said patentee to Ed. Lyles. Nor were there any taxes paid by anyone until after appellees filed this suit on October 16, 1937, wherein they asked for a cancellation of the patent and of the conveyances as a cloud upon their title.
The application filed by Oscar Davis on December 3, 1936, with the state land commissioner to obtain the patent recited that "The present value of the land is not in excess of $80.00," whereas he sold the timber on the same to the appellant, E.L. Bruce Company, for $700 on December 22, 1936, — the date on which he placed his patent of record; and then traded the land to Lyles for 300 or 400 acres of other land by paying less than $300 additional in cash. In other words, a manifest fraud was perpetrated upon the State in procuring the patent, at from five per cent to ten per cent of the value of the land and timber thereby conveyed. State ex rel. McCullen, Land Com'r, et al. v. Adams, et al., 185 Miss. 606, 188 So. 551; Streater et al. v. State ex rel. Moore, Land Com'r, 180 Miss. 31, 177 So. 54.
It is true, as contended by the appellant, that only the State is entitled to have the patent cancelled on the sole ground of the fraud committed upon its land commissioner in the procurement thereof, but this principle does not preclude the former owners of the land from having the patent cancelled in their own right as a cloud upon their title on the separate ground that the tax sale to the State is void as having been made on a date not authorized by law. This right of the owner is expressly recognized by Chapter 196 of the Laws of 1934, and existed long prior thereto. Nor are such former owners prevented from proving the fraud and the notice thereof furnished in the application of the patentee, or from emphasizing the grossly inadequate price paid to the State, as disclosed in the recorded patent, in answer to a subsequent vendee's contention that he is an innocent purchaser for value without notice. However, in the case at bar, appellant could not successfully maintain that it occupies the position of such a purchaser, even in the absence of any notice, actual or constructive, of the fraud committed upon the State, since the tax sale itself, made on a date not authorized by law, disclosed that the State had acquired no title, and could not convey any by the patent issued to appellant's vendor. White v. Noblin, supra.
Finally, it is insisted that under Chapter 196 of the Laws of 1934, the appellees were precluded from bringing this suit except within two years after April 4, 1934, as therein provided. This question was settled, however, adversely to the contention of the appellant, in the cases of Russell Investment Corporation v. Russell, 182 Miss. 385, 386, 178 So. 815, 182 So. 102, and White v. Noblin, supra; since the possession of appellees, as it existed at the time of the tax sale was never invaded or disturbed in any manner, either by the State while it was asserting title under the tax sale, or by the patentee or his vendees, until the appellant began cutting the timber from the land after December 22, 1936; and hence, appellees were not required to commence an action until within two years thereafter. They were not required to actually occupy the land in the meantime by residing thereon in order to have it in their possession and under their control so as to prevent the running of the statute of limitation, it having been held in the case of Russell Investment Corporation v. Russell, supra, that the State is without the constitutional power to require one to commence an action to recover property owned by him while he is already in the possession and enjoyment of all the rights claimed by him in regard thereto. Until his possession is invaded or disturbed by the purchaser at the tax sale, or by a subsequent vendee of such purchaser, the statute of limitation prescribed by the statute for commencing an action does not begin to run.
The finding of the court below, fixing the value of the timber cut by the appellant at the price paid therefor, is not manifestly wrong under the other facts and circumstances testified to. While the appellees were not bound by the price paid by appellant, and would have been entitled to prove that it was worth more, they are not complaining of the amount of the decree rendered in their favor against the appellant, in the sum of $700, and we do not think that appellant can be heard to complain in the absence of proof that it was worth less than the price which it had recently paid for the same. The decree appealed from is therefore affirmed.
Affirmed.