Opinion
No. 36172.
October 28, 1946.
PUBLIC LANDS.
Where facts stated in application to purchase lands from State were sworn to, the statute was complied with, and failure of application to show jurat of notary was immaterial (Code 1942, secs. 1315, 4079).
APPEAL from chancery court of Marion County, HON. LESTER CLARK, Chancellor.
Greek L. Rice, Attorney General, by W.B. Fontaine, Assistant Attorney General, for appellant.
The failure of the applicant to swear to the application was a condition precedent to the issuance of the forfeited tax land patent and the patent issued pursuant to said application carried no title, was void and should be cancelled.
Hardy v. Hartman, 65 Miss. 504, 4 So. 545; Koch Dryfus v. Bridges, 45 Miss. 247; McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 47 So. 801; Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713; State v. Harper, 195 Miss. 580, 15 So.2d 680; State v. Austin, 198 Miss. 752, 23 So.2d 919; Baker v. Hare, 192 N.C. 788, 136 N.E. 113; Laws of 1936, Ch. 174, Sec. 5 (Code of 1942, Sec. 4079); Laws of 1940, Ch. 309, Sec. 3 (Code of 1942, Sec. 1317).
Roy J. Goss, of Columbia, for appellee.
The finding of the trial court that the application to purchase the lands involved was actually sworn to before a notary public duly authorized to administer oaths and that all requirements of law in connection with said application were complied with is amply supported by the undisputed evidence and, therefore, such findings should not be disturbed.
Dunlap v. Clay, 65 Miss. 454, 4 So. 118; Brooks v. Snead, 50 Miss. 416; Redus v. Woffard, 4 Smedes M. (12 Miss.) 579; Hartsell v. Myers, 57 Miss. 135; Coppock v. Smith, 54 Miss. 640; Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A.L.R. 836; June v. School District, 283 Mich. 533, 278 N.W. 676, 116 A.L.R. 581; Richardson v. Ross, 111 W. Va. 465, 163 S.E. 2; Knapp v. Cowan, 230 Mo. App. 226, 88 S.W.2d 424; Laws of 1936, Ch. 174, Sec. 5 (Code of 1942, Sec. 4079); 1 Am. Jur. 946, Sec. 19.
Whether the application was properly sworn to or not, Chapter 309 of the Laws of 1940, Sections 3 and 7 thereof, required the trial court to validate and perfect the appellee's title to the lands involved, fraud in procuring the State's title not having been charged or provd.
State v. Roell et al., 192 Miss. 873, 7 So.2d 867; State v. Lewis et al., 192 Miss. 890, 7 So.2d 871; State ex rel. McCullen v. Tate et al., 188 Miss. 865, 196 So. 755; Streeter v. State ex rel. Moore, 180 Miss. 31, 177 So. 54; State ex rel. McCullen v. Adams, 185 Miss. 606, 188 So. 551; Sykes v. Town of Columbus, 55 Miss. 115; Powers v. Penney, 59 Miss. 5; Nevin v. Bailey, 62 Miss. 433; Gibbs v. Dortch, 62 Miss. 671; Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781; Carter v. Spencer, 4 How. (5 Miss.) 42; Edward Hines Yellow Pine Trustees et al. v. State ex rel. Moore, 133 Miss. 334, 97 So. 552; State ex rel. Moore v. Knapp, Stout Co., 136 Miss. 709, 101 So. 433; State v. Austin, 198 Miss. 752, 23 So.2d 919; Boles v. Brimfield, 120 U.S. 759, 7 S.Ct. 736, 30 L.Ed. 786; Street v. United States, 133 U.S. 299, 10 S.Ct. 309, 33 L.Ed. 631; Turpin v. Lemon, 187 U.S. 51, 23 S.Ct. 20, 47 L.Ed. 70; Code of 1930, Ch. 153; Constitution of 1890, Sec. 95; Laws of 1890, Ch. 44, Sec. 1; Laws of 1934, Ch. 196; Laws of 1936, Ch. 174, Sec. 5; Laws of 1940, Ch. 309, Secs. 3, 7 (Code of 1942, Secs. 1317, 1321); 11 Am. Jur. 1211.
Argued orally by W.B. Fontaine, for appellant, and by Roy J. Goss, for appellee.
Appellee filed her bill against the State to confirm its tax patent to the following lands in Marion County: SE 1/4 of SW 1/4 of Section 1, Township 1 North, Range 13 East. Code 1942, Section 1315. The answer of the State set up as a defense only the alleged failure of the applicant for its purchase to swear to the facts stated in the application. See Code 1942, Section 4079. The answer was made a cross-bill praying cancellation of the patent. Appellee obtained title by mesne conveyance from the patentee whose patent was dated August 18, 1936.
The latter statute requires "Each such application shall be properly sworn to before an officer authorized to administer oaths." No fraud or misrepresentation is alleged. The fact of the oath was the sole issue.
Upon the record shown by the testimony, the chancellor was justified in finding that the applicant did make oath thereto. The application, however, does not show the jurat of the notary. The statute does not specifically require that such attestation be a prerequisite, although of course its execution by the Land Commissioner ought to have been effected by him as conclusive evidence of the fact of the oath. The fact that the answers elicited by the application were sworn to in fact meets the requirements of the statute. That which was omitted to be done rested upon the State's officer and agent. It may not be charged against the patentee nor his grantee. Dunlap v. Clay, 65 Miss. 454, 4 So. 118; Hartsell v. Myers, 57 Miss. 135; Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A.L.R. 836.
We find it unnecessary to consider whether Code 1942, Sections 1317 and 1321, would validate the patent despite the omission of the Land Commissioner.
Affirmed.