Opinion
No. 33296.
September 26, 1938.
1. TAXATION.
A statute requiring that the land commissioner file applications for the purchase of lands which have been forfeited to the state for taxes in the order in which they are received, giving each application a serial number, does not require that a patent be issued to the first applicant (Laws 1936, chapter 174, sections 4, 5).
2. TAXATION.
Under statute relating to the purchase of lands which have been forfeited to the state for nonpayment of taxes, an applicant does not become entitled to acquire a patent until the price of the land has been fixed and the sale has been actually made with the approval of the Governor (Laws 1936, chapter 174, sections 4, 5).
3. TAXATION.
Under statute relating to purchase of lands which have been forfeited to state for nonpayment of taxes, fixing of price of sale to former owner and issuance of patent to him by land commissioner, with approval of Governor, together with delivery of such patent, on payment of purchase price agreed on, precluded officials from thereafter approving, signing and delivering another patent on that same day to another applicant, notwithstanding that application of such other applicant was filed first with land commissioner (Laws 1936, chapter 174, sections 4, 5).
4. TAXATION.
Under statute relating to the purchase of lands which have been forfeited to the state for nonpayment of taxes, an applicant acquires no equitable right or title to the land or any interest therein until his application for purchase and price agreed upon has been approved by the Governor as well as by the land commissioner (Laws 1936, chapter 174, sections 4, 5.)
5. TAXATION.
In suit, involving title to land, by successor of former owner who had repurchased land from state following sale thereof to state for taxes, against applicant to whom a patent had been issued after issuance of patent to former owner, where bill alleged that state became owner of the property by virtue of tax sale and answer expressly admitted the allegation, plaintiff was not foreclosed from obtaining the relief prayed because he failed to deraign his title so as to show that a patent had been issued by the United States (Laws 1936, chapter 174, sections 4, 5).
APPEAL from the chancery court of Humphreys county; HON. J.L. WILLIAMS, Chancellor.
W.D. Womack and J.A. Mortimer, both of Belzoni, for appellant.
The appellee filed his bill to confirm his title and to remove the claim of appellant as a cloud upon his title. He failed to deraign his title as provided by law in such cases. He failed to offer evidence in the court below showing that the land was subject to private ownership. He relies upon the presumption that up to the title of James Lewis, that the title to the property was good and expects the court to indulge the same presumption. While a demurrer was not interposed in the lower court, the fatal defect as appears in the pleading and proof in this case is one which this court can take notice of and act upon. In the case of Ables v. Forrester, 181 So. 913, the court said that a man was not entitled to recover on the weakness of his adversary's title, but on the strength of his own. The court also held in this case that it was necessary for the title to be deraigned in such cases at bar. Therefore, the failure to do so is a fatal error on the part of the pleader and being a statutory requisite can be first raised upon appeal.
Acoff v. Roman, 172 Miss. 141, 159 So. 555; Ables v. Forrester, 181 So. 913.
As between persons other than actual settlers, the first applicant whose application is in due order ordinarily is entitled to a preference.
50 C.J., page 975, sec. 192; Hurst v. Hawn, 5 Or. 275; Mernhard v. Wall, 184 Cal. 612, 194 P. 1040; Bicber v. Lambert, 152 Cal. 557, 93 P. 94; Kleinsorge v. Burgbacher, 6 Cal.App. 346, 92 P. 199; Sec. 5, Chapter 174, Laws of 1936; Birmingham Coal Iron Co. v. Arnett, 62 So. 26; Orrell v. Bay Manufacturing Co., 36 So. 561.
It is true the cases here cited are dealing with the method of sale and purchase of public land from the federal government, but it is the position of the applicant that the same legal and equitable principles obtain in the case at bar. That a first right to a patent was created by the application to purchase, and that, after the filing of the application, even though the patent had not itself been issued the government held the patent in trust thereafter for the benefit of the applicant or entryman until it was actually issued to him as provided by law. The same principle is held in the cases of Dickison v. Brown, 17 Miss. 130; McFee v. Keirn, 15 Miss. 780; and in the case of Parker v. Wallis, 3 Ohio 490; while these cases are not directly in point as to the facts they are in point as to the principle of law giving the first applicant the first right to a patent.
50 C.J., page 1105, sec. 504, page 1096, sec. 493.
The authorities agree here that an equitable right has been invested to an applicant and thereafter a patent is issued to some other person, a subsequent applicant, that such person holds the title to the property as trustee for the original applicant. That a resulting trust has thereby been created for the use and benefit of the original applicant.
S.S. Dale Sons v. Griffith, 46 So. 543, 93 Miss. 573; Kelsey v. Lake Childs Co., 112 So. 887; Carroll v. Safford, 3 How. 441, 11 L.Ed. 67; Wirth v. Branson, 98 U.S. 118, 25 L.Ed. 86.
As we see this case, it is a question of title. If the State of Mississippi owned the property it had a right to sell it to any person making application, able and willing to buy. T.E. Mortimer, Jr., appeared on the 22nd day of September, 1936, and made the application in due form; was able and willing to buy and did buy. The record discloses that he was the first applicant. When he filed his application he was then and there entitled to the patent and from that very minute the State of Mississippi held it in trust for him.
R.H. Nason, of Belzoni, for appellee.
There is a vast difference between the laws of the State of Mississippi with reference to the purchase of land from the state and other laws passed by the United States Government offering actual settlers certain priority of rights. A reading of these United States statutes shows that an actual settler is given some priority of rights, whereas, the state laws with reference to the sale of state land no such rights are given.
James Lewis had no prior right in law to purchase the land but it was a matter of common knowledge that the Land Commissioner and the Governor of the State of Mississippi have for a number of years granted to original owners a prior right to repurchase their property. Such custom was presented and embraced in Sec. 14, Chapter 174, Laws of 1936. The evidence in this case as shown by Mr. Parker Ellis, cashier of the bank, and Mr. W.C. Curle, farm agent of the bank, that there had been two conferences with James Lewis about his repurchasing this land. James Lewis signed the application to repurchase this land, the same was duly acknowledged before Mr. Ellis. On this conflict of testimony the court decided that James Lewis had applied for his land and that the patent issued to him was a good patent and that W.C. Curle acquired his title through foreclosure of the Grenada Bank's deed of trust.
There can be only two questions to be decided by the court in this case; the first is whether it was necessary for complainant to show title out of the United States Government for the tax sale from the state to be good, and second, as to whom the state gave its first patent.
It was held in the case of Ables v. Forrester, 181 So. 913, that the complainant was required to allege and prove that title to the land had passed out of the United States Government, or, in other words, to prove that the land was subject to private ownership. The decision in that case was based on Ables' answer and a demurrer; he answered to the effect that the title had never passed out of the government and that he, Ables, was the true owner and the decision was based on the fact that on the trial no evidence was offered to show that the title had passed out of the government. To the same effect was the case of Acoff v. Roman, 172 Miss. 141, 159 So. 555. In the case now before this court the defendant in his answer admits that the land in controversy was duly and legally assessed for taxes for the year 1932, that it sold to the State of Mississippi on default of payment thereof and that the State of Mississippi became the owner of said property by virtue of said sale. The answer, therefore, admits that the property in controversy was private property subject to be assessed and payment of taxes and that title legally passed to the state. And appellee submits that this admission in defendant's answer removes any question to be raised on the part of the evidence. In further answer to this question the Supreme Court will not pass upon a question not presented to the lower court.
Griffith's Chancery Practice, pars. 676 and 677, pages 787 to 789; Binns v. Stokes, 27 Miss. 239; Burroughs Land Co. v. Murphy, 131 Miss. 544, 95 So. 515.
It will be noted that the application for both patents was filed the same day. It will be also noted that both patents were issued on the same day, but the proof shows that appellee obtained the first patent because Mr. Simmons and Mr. Harrison went to the Governor's office and there obtained his signature and thereafter proceeded to the Secretary of State's office for a short time and then to the Land Commissioner's office, after which the Lewis patent was delivered. Appellant had his patent issued by the Land Commissioner in blank and then turned the same over to Mrs. Fry, and was therefore unable to show any evidence when he obtained the Governor's signature or when he performed the other necessary things to secure his patent. It is a settled rule of law that the issuance of a patent is evidence that everything has been performed which was necessary to its emanation.
Fulton v. McAfee, 5 How. (6 Miss.) 751; Surget v. Doe, 24 Miss. 119; Edward Hines Yellow Pine v. State, 97 So. 552, 98 So. 158.
When the patent was issued to James Lewis, the appellee, and where the patent speaks for itself, the law presumes that the purchaser made the necessary payments to the public officials and that he performed all of the prerequisites necessary to securing said patent.
Patterson v. Langston, 11 So. 932; Carlton v. Rowan, 60 So. 735; Batson v. Crorow Hardware Co., 119 So. 505.
James Lewis having, according to the record in this case, received from the State of Mississippi the first patent on the land in controversy, the various mortgages which he had theretofore executed to the Grenada Bank were re-established as a lien on the land acquired.
41 C.J. 478, par. 395; Flynt v. Hubbard, 57 Miss. 471; North American Trust Co. v. Lanier, 28 So. 804.
As the court is well aware, the Chancellor's finding of fact is not reversible unless manifestly wrong. From the evidence the learned Chancellor finds that the original owner, James Lewis, made application to purchase his property, he finds in so doing that he was the first to actually purchase his property, he finds that James Lewis had executed numerous mortgages to the Grenada Bank, and he finds that it was necessary for the bank to foreclose these mortgages and that appellee, W.C. Curle, became the purchaser thereof.
This is an appeal from a decree of the chancery court of Humphreys County canceling a certain forfeited tax land patent issued by the State of Mississippi to the appellant on the 23rd day of September, 1936, as a cloud upon the title of the appellee to the land involved, and decreeing the appellee to be the owner of said land.
The land in controversy was purchased by one James Lewis and wife from a former owner, A.M. Spencer, on January 18, 1930, at the price of approximately $15,500, evidenced by nine promissory notes, payable October 1, 1930, to October 1, 1938, inclusive, secured by a vendor's lien and a deed of trust on the land. These notes and the liens securing the same were duly assigned to the Grenada Bank. The deed of trust was thereafter renewed on December 8, 1932, and again on February 7, 1934, in favor of the Grenada Bank, as the then holder of the indebtedness, which remained unpaid, the last renewal being for the sum of $7,378.
In the meantime, James Lewis and wife permitted the land to be sold on September 18, 1933, for the unpaid tax assessed thereon for the year 1932, when the land was struck off and sold to the State of Mississippi. Under the statutes then in force, the title of the State matured on September 18, 1936, on account of the failure of the owners to redeem the same from the said tax sale. On the next day, James Lewis, according to the finding of the chancellor, on conflicting testimony, duly executed an application to repurchase the land from the State, addressed to R.D. Moore, State Land Commissioner, on the form prescribed for that purpose, and which application was filed in the office of said State Land Commissioner by a representative of the Grenada Bank on September 22, 1936. On that same date, the appellant likewise filed his application for the purchase of the land, accompanied by a written statement from James Lewis to the effect that he had no desire to purchase the property described in the application of the appellant, which showed that he was the former owner. The application of the appellant was given the Serial No. 5969, while that of James Lewis was given the Serial No. 5970, under the requirement of Section 5 of Chapter 174 of the Laws of 1936, which requires that applications shall be filed by the Land Commissioner in the order in which they are received and that each application shall be given a serial number and shall be entered on a record book on the day it is received.
Section 4 of the said Chapter 174 of the Laws of 1936 provides that "the Land Commissioner, with the approval of the Governor, is hereby authorized to sell any lands which may have been forfeited to the State for the nonpayment of the taxes after the time allowed by law for redemption shall have expired for any bona fide purchaser, at such price as the Land Commissioner, with the approval of the Governor, may fix. . . ." It appears from the testimony that the Governor was not in the City of Jackson on the date these applications were filed, but that when he arrived at his office on the next morning he approved and signed the patent issued by the Land Commissioner in favor of James Lewis, prior to the time he affixed his approval and signature to the one issued in favor of the appellant. In fact, it does not appear at what time later in the day he approved and signed the patent of the appellant. The patent thus issued and delivered in favor of James Lewis, with the approval of the Governor, was thereupon promptly presented to and countersigned by the Secretary of State, returned to the office of the Land Commissioner, given a prior patent number and duly recorded in advance of that issued in favor of the appellant.
The first question presented for decision on this appeal is whether the fact that the Land Commissioner was required to file the applications in the order in which they were received, and to give each of them a serial number, denied to James Lewis' priority in acquiring the title of the land by purchase from the State, since whatever title he acquired inured to the benefit of the trustee, under the deed of trust given by him to the Grenada Bank during the period of redemption, and which deed of trust was subsequently foreclosed, after refusal by James Lewis to renew the indebtedness or agree to pay the same, whereof the appellee, W.C. Curle, became the purchaser at the trustee's sale.
We find nothing in Chapter 174, Laws of 1936, requiring the Land Commissioner to issue a patent to the first applicant for the purchase of the land, and we are of the opinion that the applicant does not become entitled to acquire a patent under this Act until the price of the land has been fixed and the sale has been actually made, with the approval of the Governor; that the fixing of the price of the sale to the former owner and the issuance of a patent to him by the Land Commissioner, with the approval of the Governor, together with the delivery of such patent, upon the payment of the purchase price agreed upon, left these officials without power or authority to thereafter approve, sign and deliver the other patent on that same day to the appellant, notwithstanding that his application therefor was first in time.
Appellee cites numerous authorities to the effect that an entryman of Government land for homestead purposes acquires an equitable title thereto, and that when a patent is issued, it relates back to the date of entry, but we are of the opinion that these decisions are not applicable in construing the act here involved. Under the Federal Statutes, an entryman of Government land is required to do certain things whereby he acquires rights prior to the issuance of his patent, while in the purchase of land under the Act here under consideration the applicant acquires no equitable right or title to the land, or any interest therein, until his application for the purchase thereof has been approved by the Governor of the State, as well as by the Land Commissioner, after the price agreed upon with the Land Commissioner is also duly approved by the Governor.
It is next insisted, that under the rule announced in the cases of Acoff v. Roman, 172 Miss. 141, 159 So. 555, and Ables v. Forrester, Miss., 181 So. 913, the appellee was not entitled to the relief prayed for, for the reason that he failed to deraign his title so as to show that a patent had been issued by the United States for the land in question. However, in the case of Acoff v. Roman, supra, it was neither shown that the parties claimed through a common source of title nor that the land in question was subject to taxation or private ownership. In the case of Ables v. Forrester, supra, the bill of complaint alleged that both Forrester and Ables claimed title under a forfeited tax sale patent from the State, and that the complainant, Forrester, held the prior patent. And, it was expressly denied in the answer that a patent to the land had ever been issued by the United States. This question being put directly in issue by the answer, and there being no proof offered to show that title had passed out of the Government, the court held that complainant, Forrester, was not entitled to recover. But, in the case at bar, the bill of complaint alleged that "the land in controversy was duly and legally assessed for taxes for the year 1932, and was sold to the State of Mississippi in default in the payment thereof, and that the State of Mississippi became the owner of said property by virtue of said sale." The answer of the appellant expressly admitted the foregoing allegation to be true. This admission, and especially the portion thereof to the effect that "the State of Mississippi became the owner of said property by virtue of said sale," together with the allegations and proof of the claim from this common source of title, dispensed with the necessity of proof being offered by the appellee to show that the title had been passed from the United States, since it necessarily followed that if the State became the owner of the property by virtue of the tax sale, the title had theretofore passed by patent from the United States.
We are therefore of the opinion that the decree of the court below canceling the patent held by the appellant as a cloud upon the title of the appellee was correct.
Affirmed.