Opinion
No. 34036.
February 26, 1940. Suggestion of Error Overruled March 11, 1940.
1. LANDLORD AND TENANT.
The granting of an easement for pipe line did not create "landlord and tenant relationship" between the gas company and the owner of the land, and the gas company's possession of portion of the land through which its pipes ran did not inure to the benefit of the owner of the land.
2. TAXATION.
Where land was sold for taxes in 1932 and bill of complaint to cancel the sale was filed in 1939, validity of the tax sale would not be inquired into to determine the rightfulness vel non of purchaser's possession, since to do would be to decide the case on its merits which was the right the 2-year statute of limitations was intended to cut off (Laws 1934, chap. 196, sec. 1).
3. TAXATION.
In suit to cancel sale of property to the state for taxes and patents from state thereto, refusal to allow amendment alleging that patents to land were fraudulently obtained from the state and praying that process issue to the state land commissioner was not error, since land commissioner only can raise the question of fraud on the state in obtaining patents to land, and whether he shall raise the issue is for his own determination, and in absence of statute to contrary he is not "necessary party" in suit to cancel tax sale.
APPEAL from the chancery court of Yazoo county; HON. M.B. MONTGOMERY, Chancellor.
Ruth Campbell, of Yazoo City, for appellant.
The two-year Statute of Limitation cannot apply to a tax sale prematurely made before the day has expired on which taxes can be lawfully paid, or to a void tax sale prematurely made on a day before taxes can be lawfully enforced, after delinquencies, as provided by law, or to a tax sale made by the sheriff and tax collector without any authority in law or power so to do, without having any jurisdiction over the taxpayer, or the subject matter, contrary to constitutional requirements, which sale would be a fraud in law, or to constructive possession of wild timbered lands of non-resident citizens coupled with rights of possession granted to former grantees and exercised by them of ingress and egress over said lands after the sale made on August 1, 1932.
Laws of 1934, Chap. 196; Laws of 1931, Chaps. 24 and 25; Laws of Ex. Session, 1932, Chap. 383; Smith v. Hendrix, 178 So. 821; Secs. 14 and 135, Const. of 1890; Gully v. Lincoln County, 185 So. 795; Dingy v. Paxton, 60 Miss. 1038; Hoskins v. Railroad, 78 Miss. 768; Barker v. Jackson, 90 Miss. 627; Byrd v. Dickson, 120 So. 564; Patterson v. Morgan, 138 So. 364; Russell Inv. Co. v. Russell, 182 So. 108; Cameron v. Whittington McGehee, 82 So. 312.
In this instant case the sheriff failed to sell his land for taxes on April 1st, as the sheriff could have done it at that time but elected to wait and charge interest on the taxes, hence since a valuable consideration was being paid to have the taxes carried over until after August 1, 1932, the sheriff of Yazoo County was without any power or authority in law to sell the lands of Chas. A. Phillips on August 1, 1932 for taxes and interest on same, until the third Monday in Sept. according to the above decision, and decision in Hendrix case, Chas. A. Phillips had until August 1, 1932, the entire day, in which to pay his taxes with interest and could not be termed as delinquent, subject to damages and advertising fees, and have his property sold on August 1, 1932 for taxes, interest thereon, damages and advertising fees, yet, that is just what the sheriff of Yazoo attempted to do, and said sale was the same as no sale, and was a fraud in law, because the sheriff had no power to make same any more than a private citizen.
The two-year Statute of Limitation cannot apply to a sale of this type. Fraud will not set a Statute of Limitation in motion.
Where the state obtained no title, an absolutely void title, under Section 6046 of the Code of 1930 it is provided that if the state issues any patents to lands to which the state holds no title that the patents shall be cancelled and the money refunded.
Enochs v. State ex rel. Roberson, 133 Miss. 107, 143, 97 So. 534.
Mrs. Teresa C. Jones, appellant here, has a solemn paper title from the government down to date, and it is of great, definite, fixed value and cannot be brushed aside by the Russells attempting to set up state patents issued on a tax title void on its face for want of power to sell, first because the taxpayer could not be delinquent until after August 1st, second because no sale for delinquent taxes could be made until the third Monday in September, the second day fixed by statute for sale of delinquent tax land, and seeking to make them good by pleading the two-year Statute of Limitation and constructing an airy fabric of title so insubstantial, that —
"Like the Borealis' Race It flits ere you can point its place."
The state itself never obtained any lawful possession of this land, for there was no lawful sale, for delinquent taxes, on August 1, 1932. Possession all goes back to the type of title that anyone has obtained. Since the state has never had any lawful possession of this property, then by virtue of its issuing void patents to the Russells they never obtained any lawful possession but were merely trespassers upon the property of appellant. To support possession there must be some color of title.
In a suit to cancel an instrument which clouds the title, where the state was involved, the land commissioner ought to be made a party, and any false applications made by defendants to obtain title (or any false representations made) should have been made exhibits and the bill amended to properly set forth the weakness of defendants' title.
Secs. 404, 1381, 6020, 6028, Code of 1930; State Mineral Lease Com. v. Lawrence et al., 157 So. 899; Dead River Fishing Hunting Club v. Stovall et al., 113 So. 336; State v. Adams, 188 So. 553.
Barbour Henry and J.G. Holmes, all of Yazoo City, and Forrest B. Jackson, of Jackson, for appellees.
This is a suit in chancery to cancel as clouds a number of conveyances. The title of defendants (appellees) depends on a patent from Mississippi, which appellant deems void because the sale was irregular and on the wrong date. To this appellees reply, and rely on the two-year Statute of Limitations provided by Chapter 196 of the Acts of 1934 of the Mississippi Legislature, as the lands were overflow and uncultivated land and never in possession of the owner at the time of sale to Mississippi on August 1, 1932, for the taxes of 1931, or before or since that time.
The appellees rely upon Chapter 196 of Mississippi Laws of 1934; Smith v. Hendrix, 181 Miss. 229; Russell Inv. Co. v. Russell, 182 Miss. 385; White v. Noblin, 183 So. 914.
The act expressly provides suit shall be brought within two years after effective date of the Act, (April 4, 1934). This suit was brought May 19, 1939, or five years after such date. No suit to cancel title of the state or its patentees shall be brought except within two years after this date (April 4, 1934) on account of any defects, irregularity, or illegality in the assessment, levy or sale of such land for delinquent taxes." The only exception is in case the taxes have been paid prior to time of sale and as to land sold prior to January 1, 1928.
The courts' attention is again called to the allegation of the bill as originally filed (later stricken therefrom) and the agreed statement of fact that appellant and her grantor, Ficklin, resided in Chicago and at no time was ever in possession of the land, not even paying taxes thereon since she acquired it in September, 1933.
Chapter 196, Laws 1934, expressly limits the time in which the title to the state, or its patentees can be attacked, and that time has expired, and the act fixing the period has been upheld by this court, on a state of facts similar to those shown by this record.
The appellant seeks the cancellation of a sale of land to the State for taxes, three patents from the State thereto, and several leases thereof and contracts for the sale of timber thereon executed by the patentees.
The land was owned in 1931 by Phillips. The taxes thereon for that year were not paid, and it was sold by the sheriff therefor on August 1, 1932. On September 9, 1932, Phillips granted the Southern Natural Gas Corporation a right of way over a portion of the land for a pipe line, with the right of ingress and egress for the purpose of laying and maintaining the pipe line. On September 30, 1932, Phillips conveyed the land to Ficklin "subject to unpaid taxes and all other restrictions and obligations." On the 15th day of September, 1933, Ficklin conveyed the land to the appellant "subject, however, to unpaid taxes for 1931 and thereafter . . . and to right of way to Southern Natural Gas Company." The bill of complaint was filed in May 1939. The appellee relies on the two-year period of limitation for bringing actions of this character prescribed by Chapter 196, Laws of 1934 — the first section of which the Reporter will set out. The appellant lives in Illinois and her only claim of actual possession of the land is based upon the grant by Phillips to the Southern Natural Gas Corporation of a right to lay a pipe line across a portion of the land. This pipe line was laid by the gas company, and its employees go on the land in order to do whatever is necessary to keep it in proper order. Pretermitting any consideration of the effect vel non of the sale of the land for taxes on this easement of the gas company, it, the easement, does not create the relationship of landlord and tenant between the gas company and the owner of the land; and the gas company's possession, if such it is, of that small portion of the land through which its pipes run is in its own right and for its own benefit and does not inure to the benefit of the appellant.
"Section 1. Be it enacted by the Legislature of the State of Mississippi, That the owner, mortgagee or other person interested in any land which has been heretofore or may be hereafter sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes, within two years after the date this act becomes effective as to lands heretofore sold or forfeited to the state for delinquent taxes, and within two years after the period of redemption shall have expired, as to lands hereafter sold or forfeited to the state for delinquent taxes, and not thereafter. Provided, however, the limitations herein fixed shall not apply when the taxes on such land had been paid prior to the time it was sold for taxes, and provided, further, that the provisions of this act shall not apply to lands sold to the state prior to January 1, 1928."
The appellant's main contention is that the statute applies only when there is an actual delinquency in the payment of the taxes thereon at the time land is sold therefor, and that there was no such delinquency here, for the reason that under the statute then governing the sale of lands for taxes, the owner thereof had during the whole of the first day of August, 1932, in which to pay the taxes on the land for 1931; consequently, this land having been sold on that day, before the expiration of the time in which the taxes could be paid, there was no delinquency at the time of the sale in the payment thereof. A decision of this question would be on the merits — the very thing which the statute was intended to cut off, and the only exception thereto which the statute recognizes is the actual payment of the taxes on the land prior to its sale therefor.
On the theory that the statute would not apply if the appellees were not in possession of the land, the appellant says that the appellee's possession was not rightful if the sale of the land to the State for taxes was wrongful, for, in that event, its entry on the land would be merely as a trespasser. The sale of the land to the State for taxes vested title in the State and its vendees prima facie and possession thereunder is prima facie rightful. Moreover, to inquire into the validity of the tax sale in order to determine this rightfulness vel non of this possession would be to decide the case on its merits, that which the statute here under consideration was intended to cut off,
The appellant asked, but was not permitted, to amend her bill of complaint by alleging that the patents to this land were fraudulently obtained from the State; and the prayer thereof by adding thereto: "That process issue to the Sheriff of Yazoo County to summon the State Land Commissioner, Guy McCullen, to be and appear at August Rules to Plead, answer or demur to this suit." No error was committed in not allowing this amendment. The Land Commissioner only can raise the question of fraud on the State in obtaining patents to land, Reliance Investment Company v. Marguerite Johnson et al., 193 So. 630 (recently decided by this Court, February 12, 1940, but not yet reported) and whether he shall raise this question or not is for his own determination. In the absence of a statute to the contrary, he is not a necessary party to a suit of this character, and no statute requiring him to be made a party thereto has been called to our attention.
Affirmed.