Opinion
No. 35457.
November 22, 1943. Motion to Correct Decree Overruled December 20, 1943. Suggestion of Error Overruled December 20, 1943.
1. PUBLIC LANDS.
The public lands of the state are not subject to disposal by any officer, except as fixed by valid statutory provisions.
2. TAXATION.
A forfeited tax land patent purporting to convey state title to 80 acres of land back to original owner, who remained in possession for recited consideration of 50 cents per acre, was inoperative to convey state's title, where accrued taxes on land at date of patent were more than $100, and value of land was largely in excess of $1 per acre, in view of statutory provisions (Laws 1936, ch. 174, secs. 4, 24).
3. TAXATION.
Where forfeited tax land patent purporting to convey state title to land back to original owner who remained in possession was inoperative because consideration required by law was not paid, patent could not be confirmed upon ascertainment of required amount and upon its payment (Laws 1936, ch. 174, secs. 4, 24).
ON MOTION TO CORRECT DECREE. (In Banc. Dec. 20, 1943.) [16 So.2d 29. No. 35457.]1. TAXATION.
In suit to confirm alleged forfeited tax patent, decree dismissing bill on ground that patent was invalid could not be modified so as to cancel the invalid patent where no cross-bill was filed by state asking for such affirmative relief (Laws 1940, ch. 309, secs. 2, 3).
2. CANCELLATION OF INSTRUMENTS.
Where defendant seeks more than to defeat relief sought by complainant on an instrument, such as cancellation of the instrument, defendant can only obtain such relief by cross-bill.
APPEAL from chancery court of Madison county, HON. M.B. MONTGOMERY, Chancellor.
Greek L. Rice, Attorney General, by Jefferson Davis and W.B. Fontaine, Assistant Attorneys General, for appellant.
The only issue presented by the pleadings and proof was whether this tax forfeited land patent was issued for a consideration so grossly inadequate as to amount to a donation of the land in violation of Section 95 of the Constitution of 1890.
We have here one of those few cases where there is no dispute as to the facts. The only question presented is a question of law. In this case we have eighty acres of land that was forfeited to the state for non-payment of taxes. The state became the owner of the land and after holding title to it for three years the Land Commissioner undertook to sell this land under the provisions of Chapter 174 of the Laws of 1936 for the sum of $40. When this transaction took place the fair and reasonable market value of this improved property was $650. This being true, could the land be sold and a patent issued for approximately 6 percent of this fair and reasonable market value, that is $40? This question has already been settled by this court in the negative.
Draughn v. State (Miss.), 13 So.2d 154; State ex rel. McCullen v. Tate, 188 Miss. 865, 196 So. 755; State ex rel. McCullen v. Adams, 185 Miss. 606, 188 So. 551; State v. Lewis, 192 Miss. 890, 7 So.2d 871; State v. Roell, 192 Miss. 873, 7 So.2d 867; Streeter v. State ex rel. Moore, 180 Miss. 31, 177 So. 54; Laws of 1936, Ch. 174; Laws of 1940, Ch. 309.
The sum and substance of the chancellor's opinion and the briefs filed on behalf of appellees is that, because no actual fraud was committed against the State of Mississippi in the application for the patent to the property involved herein and the Land Commissioner issued the patent, the state is thereby bound by the issuance of the patent under such circumstances and cannot inquire into the validity at this time, especially since the patentee was the original owner of the land at the time of the sale to the state for taxes and has remained in possession ever since.
With all due deference to the learned chancellor and to the counsel for the appellees, we respectfully submit that this is not the law in this state.
Gift v. Love, 164 Miss. 442, 144 So. 562; State ex rel. McCullen v. Adams, supra; State v. Roell, supra; State ex rel. McCullen v. Tate, supra; Winton v. Day, 96 Miss. 1, 49 So. 264; Laws of 1940, Ch. 309.
Ray, Spivey Cain, of Canton, for appellee.
It has been the long established legislative and judicial policy in this state to encourage and promote private rather than public ownership of land. It has likewise long been the legislative and judicial policy in the absence of fraud to quiet and confirm titles in patentees in the state rather than to upset and disturb them.
Laws of 1940, Ch. 309.
It has further been the long established policy to favor the former owner in the sale of state tax lands and upon reasonable and equitable terms and without regard to the value in determining the purchase price to be paid to restore to a former owner any land which he may have lost by mistake, oversight or unintentional default.
Laws of 1936, Ch. 174, Secs. 23, 24.
In this case appellee, the former owner, has offered in his bill to do equity. The undisputed proof shows that, not only in procuring his patent, but in permitting his land to sell for taxes and his title to mature in the state, he was wholly guileless and without fault. It shows that during all of the period when his land was being lost he was turning his entire earnings over to his confidential friend and financial adviser in the honest and sincere belief that they were being applied to the payment of his taxes and to the balance of the purchase price on his land. We earnestly submit that if the loss was not by mistake, oversight or unintentional default within the purview of Chapter 174, Laws of 1936, then those words in the statute are meaningless and of no effect.
Green Green, of Jackson, and J.S. Atkinson, of Shreveport, La., amici curiae.
This is a suit against the State of Mississippi under the provisions of Chapter 3 of the Laws of 1940 to confirm a tax forfeited land patent issued to George Harper on the 29th day of May, 1936, by the State Land Commissioner.
The proof shows that, under the provisions of Chapter 174 of the Laws of 1936, George Harper filed his application with the State Land Commissioner for the purchase of the North half of Southeast quarter of Section 9, Township 10, Range 4 East, which land had been owned by him at the time of the sale and of which land he was then in possession and has remained in possession continuously up to the time of the filing of this suit. The statements contained in the application appear to have been made in good faith and represent fair and accurate statements in reference to the matters contained therein and are not shown to have been untrue in any particular whatsoever.
George Harper had owned the land for many years and undertook in good faith to purchase the tax title of the State of Mississippi and honestly and conscientiously answered all of the questions and furnished all of the information truthfully that was required by the application as a condition precedent for the issuance of the patent. The patent was issued for a consideration of $40, which was paid by George Harper, while his application showed that the value of the land was not in excess of $650. George Harper took no part in fixing the purchase price of the land. He is a humble negro citizen who went to the office of one of the high state officers for the transacting of business, and there exactly complied with the requests and demands that were made upon him by the state officer in question. The proof shows that he is absolutely guileless and without fault and has in no way misrepresented any matter or undertaken in any manner to defraud the State of Mississippi.
It is contended by the Attorney General that the patent in this case is void and should be cancelled because of the gross inadequacy of consideration. The undisputed proof, however, shows that George Harper truthfully represented the value to the State Land Commissioner, and the fixing of the purchase price was wholly the act of the State Land Commissioner and was not influenced in any way by any fraud or misconduct or misrepresentation or the withholding of any information on the part of George Harper. The Land Commissioner was in possession of all of the facts and deliberately fixed the amount of the consideration with full knowledge of the value of the land. George Harper was without fault and was in no sense a party to the fixing of the amount of the consideration.
It appears from the patent that the consideration was fixed at the rate of fifty cents per acre. Section 4 of Chapter 174 of the Laws of 1936 fixes a minimum price of $1 per acre and provides that where the value of the land is less than $1 per acre such lands may be sold by the Land Commissioner, with the approval of the Governor, at a price of less than $1 per acre, provided, however, that in no such case shall such land be sold for less than the amount of the state and county taxes for which said lands were sold to the state, plus an amount equal to all penalties, fees, damages and costs accrued up to and including the date of the sale to the state. It is clear that the Land Commissioner violated the provisions of this statute in fixing the amount of the purchase price of these lands.
The general rule is that the state is not bound by the act of its officers and agents in entering into agreements or arrangements which the law does not sanction or permit and that those dealing with an agent of the state must be held to have had notice of the limitation of his authority.
Board of Levee Commissioners for Yazoo Mississippi Delta v. Foote Davies Co., 111 Miss. 10, 71 So. 163; Wilber National Bank v. United States, 294 U.S. 120, 79 L.Ed. 798; 46 C.J. 1031-32, Sec. 287.
But we are not here dealing with the act of an administrative officer attending to mere administrative details. The statute places the sale of forfeited tax lands in the hands of the State Land Commissioner and vests him with a general jurisdiction in the handling of the sale of same, subject to the limitations placed upon him by the statute. The statute makes of the Land Commissioner a land department and gives to him jurisdiction to dispose of the land, and when a patent is issued by him it is the result of a quasi judicial act of a quasi judicial tribunal. It is fundamental law that a patent issued for lands, which are a part of the public domain, carries the legal title and its issuance by the land department is a final determination of the existence of all facts necessary to entitle the patentee to the patent, and divest the department of all authority over and control of the land.
50 C.J. 1100, Sec. 499.
While a patent is subject to attack in equity for fraud or mistake, where the land department has jurisdiction to dispose of the land, a patent therefor is both the judgment of the department as a quasi judicial tribunal and a conveyance of the legal title to the land, and, unless void on its face, is conclusive in a court of law, and as against all persons whose rights did not commence previous to its emanation, or who are not in privity with the paramount source of title, as to the land thereby conveyed, the qualifications of the person to whom the patent was issued, the title of the patentee, and his performance of the conditions required by the law under which the patent was issued.
50 C.J. 1104, Sec. 503.
It is settled in this court that a patent for land emanating from the Government of the United States is the highest evidence of title and in a court of law is evidence of the due performance of every prerequisite to its issuance and cannot be questioned either in a court of law or equity, except upon the ground of fraud or mistake. As the patent in this case was not assailed upon the ground of either fraud or mistake, it results from these principles, that it was not only the highest, but that it was conclusive evidence of title in the defendant in error, upon which a recovery could be had in this action.
Sweatt v. Corcoran, 37 Miss. 513.
See also Edward Hinds 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.
There is no allegation in the pleadings of any mutual mistake on the part of the Land Commissioner or the patentee, and the proof is clear and convincing that there was an entire absence of fraud on the part of George Harper. Accordingly, the case at bar falls well within the rule announced in the foregoing decisions.
The patent itself recites that George Harper desiring to purchase the lands and having complied with all the requirements of law in such cases made and provided, the State of Mississippi in consideration of the premises and the sum of $40, conveyed the lands to him.
According to some of the early cases the recital of consideration in a deed is conclusive. The true rule, however, would appear to be that the recital is binding for the purpose of giving effect to the operative words of the deed, and that the grantor may not question the reality or adequacy of the consideration for the purpose of defeating the conveyance; but that for any other purpose it may be shown that the consideration was not paid in whole or in part, or that it was not paid as expressed in the deed, but in some other manner.
21 C.J. 1093, Sec. 77.
Our court has accepted and adopted this view and has clearly established the rule that a grantor, who has made a conveyance of lands and which conveyance recites therein a lawful consideration, will not be permitted to say that no consideration was paid to support the passing of the title to the land and thereby avoid the deed in the absence of fraud or mistake.
Day v. Davis et al., 64 Miss. 253, 8 So. 203.
Our court has repeatedly held that there can be no cancellation of a deed for a mere failure of consideration, where the deed recites a lawful consideration on its face and there is no fraud or mistake.
Longmire v. Marsh, 124 Miss. 77, 86 So. 753; Dixon v. Milling, 102 Miss. 449, 59 So. 804; Lee v. McMorries, 107 Miss. 889, 66 So. 278; New Orleans Great Northern R. Co. v. Belhaven Heights Co., 122 Miss. 190, 84 So. 178; Wynn v. Kendall, 122 Miss. 809, 85 So. 85.
The rule is well settled that all parties to a deed are bound by the recitals in it legitimately appertaining to the subject-matter of it. It applies not only to the parties immediately, but to those claiming under them, to privies in blood, privies in estate, and privies in law.
Robbins et al. v. McMillan, 26 Miss. 434.
Under these decisions I can see no reason why this recital in the patent involved herein should not come within said rule and be held to be binding upon the state, and this court holds that the recital in the patent that George Harper has complied with all the requirements of law in such cases made and provided is binding upon the state and is effective to preclude the state from attempting to show that there was some irregularity in the matter precedent to the issuance of the patent.
Finally, it is clear that the state should not be permitted to take the land of this humble negro who has been guilty of no misrepresentation or fraud and who has acted humbly and in good faith throughout, doing everything that his white superior requested of him.
It appears from the decisions of our court that the doctrine of estoppel has already been adopted by our court in cases of this kind.
Witherspoon v. City of Meridian, 69 Miss. 288, 13 So. 843; Bousquet v. Brown, 152 Miss. 171, 119 So. 166; McLain v. Meletio et al., 166 Miss. 1, 147 So. 878; Stegall v. Miles, 194 Miss. 353, 12 So.2d 537.
It will be remembered that the application for purchase from the state fixed the value of the land at $650. The patent shows the consideration paid for the purchase was $40. The proof shows this was a few dollars less than the Land Commissioner was authorized by Chapter 174 of the Laws of 1936 to accept for the land. Is this purchase price so inadequate as to amount to a donation of the land in violation of the provisions of Section 95 of the Constitution of 1890? Will confirming the sale bring Chapter 309, Laws of 1940, within the condemnation of the Constitution and violate the rule of construction laid down in State v. Roell, 192 Miss. 873, 7 So.2d 867, wherein it is said: "The Court shall validate and perfect a title based upon a patent issued pursuant to a valid tax sale, unless the patent was obtained by `actual fraud on the part of the patentee, or his representatives,' (which pre-supposes of course that a purchase price not so grossly inadequate as to amount to a donation has been paid for the land) to mean such fraud in the procurement of the patent as the making of false statements to, or intentionally withholding important information from, the State Land Commissioner as to material facts in regard to which the applicant is required to make a disclosure under oath by Section 5, Chapter 174, Laws of 1936, and which false representations were either known to be false, or were made in reckless disregard of whether the same were true or false."
It will be noted that the language, "which pre-supposes of course that a purchase price not so grossly inadequate as to amount to a donation has been paid for the land," is enclosed in parentheses showing the court was leaving the chain of thought necessary to its decision and was speaking aside or parenthetically, not meaning to make this language a limitation upon the rule it was announcing.
Section 95 of the Constitution of 1890 provides as follows: "Lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies. Nor shall such land be sold to corporations or associations for a less price than that for which it is subject to sale to individuals. This, however, shall not prevent the legislature from granting a right of way, not exceeding one hundred feet in width, as a mere easement, to railroads across state land, and the legislature shall never dispose of the land covered by said right of way so long as such easement exists."
It is elementary that one cannot donate that which one does not own nor have any right in at the time of the gift. The state does not have any right in that which by law it is estopped to claim. Chapter 309 of the Laws of 1940, in permitting the purchaser's title to be confirmed, does not thereby permit the state to donate lands to an individual where, at the time of the filing of the suit and of the trial, the state is already by law estopped to claim any interest in the lands. The state has, in fact, no lawful claim and is vested with nothing whatever to donate. In such a case Chapter 309 of the Laws of 1940 is but confirming the fact that the state is estopped to claim title and has no title whatever to the lands.
In State ex rel. Moore et al. v. Knapp, Stout Co., et al., 136 Miss. 709, 101 So. 433, the bill filed by the state sought to cancel certain patents issued by the Land Commissioner mainly upon the ground that the patents were invalid because issued under the provisions of Chapter 46, Laws of 1898, which was claimed to be in conflict with Section 95 of the Constitution of 1890, because the sale amounted to a donation of public lands. The court, on this point, however, held: "The patent conveying the title to the purchasers being regular in form, the courts will not review nor inquire into how the trustees made the sale, but will follow the legal presumption that the sale was made in accordance with the Constitution and laws of the state, as evidenced by the patent issued by the sovereign state. Therefore whether or not as a matter of fact the trustees offered the land in conformity of the requirements of section 95 of the Constitution, so long as there was no fraud or mistake, is immaterial and is not a subject of inquiry by the courts; and the testimony in the lower court, in this regard, to invalidate the patent issued by the state was irrelevant and incompetent. . ." This case is controlling here and whether or not the Land Commissioner collected the full amount he was required by law to collect before executing the patent, in the language of that case, "is immaterial and is not a subject of inquiry by the courts; and the testimony . . . in this regard, to invalidate the patent issued by the state was (is) irrelevant and incompetent."
See also Bousquet v. Brown, 152 Miss. 117, 119 So. 166; McLain v. Meletio et al., 166 Miss. 1, 147 So. 878; Stegall v. Miles, 194 Miss. 353, 12 So.2d 537.
We must bear in mind the various decisions of our court in considering and construing the Roell case, where it is said, "If the confirmation of the title would result in a donation of the land for a grossly inadequate consideration to the complainant, or in ignoring the perpetration of such fraud against the state as would render the patent void, then we assume that the court will refuse to grant such relief in either event as would violate Section 95 of the constitution. . ."
We are bound to give effect to the decision in State ex rel. Moore et al. v. Knapp, Stout Co. et al., supra, holding clearly that, in the absence of fraud or mistake, the question of adequacy of consideration is immaterial and is not a subject of inquiry by the courts.
We are also bound by the decision in Bousquet v. Brown, supra; McLain v. Meletio et al., supra, and Stegall v. Miles, supra, wherein it is clearly held that if the Land Commissioner, without any fraud being exercised by the purchaser, fixes the purchase price for tax forfeited land at less than the amount he is required by law to receive for it and issues and delivers a state patent in consideration of such lesser amount, the patent is nevertheless valid, and the state is bound by it and is estopped to set up its invalidity.
We are also bound to give effect to the language last above quoted from the Roell case, where the holding is to the effect that if the confirmation of the title would result in a donation of the land, or in ignoring the perpetration of such fraud against the state as would render the patent void, then we assume that the court would refuse to grant such relief as would violate Section 95 of the Constitution.
Reconciling all of these above mentioned decisions, we reach the conclusion that where there is no mutual mistake and where no fraud is perpetrated on the state by the purchaser, but nevertheless the Land Commissioner, Attorney General and Governor fix the purchase price for the land at less than the statute requires the Land Commissioner to receive therefor and the Land Commissioner accepts said lesser sum from the purchaser and executes and delivers the state's patent therefor that is duly countersigned by the Governor and attested by the Secretary of State, the state is bound by the patent and is estopped to deny its validity. Further, where because of the conduct of its quasi judicial officers, in fixing and receiving a lesser price than should have been required, the state is estopped from asserting the inadequacy of the consideration, the patent passes the title and the court will not inquire into the adequacy of the consideration, same not being a proper subject of inquiry, but will proceed to confirm the title provided the tax sale vested the title in the state and provided also there was no other fraud or mistake present in the transaction such as would avoid the patent. Further where there is no element of estoppel present the court may proceed to confirm the title where it appears that the tax sale vested the title in the state, the sale was upon a consideration not so grossly inadequate as to amount to a donation and no fraud or mistake was present such as would invalidate the patent. Further the court would be presumed to refuse to grant such relief where no element of estoppel is present and the consideration paid is so inadequate as to amount to a donation of the lands.
Here there was no such inadequacy of consideration as makes a confirmation of the title the equivalent of a donation of the land. The state has no title in the land to donate and has had no title since the patent was issued and has been estopped by law to assert any title. The decree of confirmation of complainant's title will be but an adjudication of the true facts.
The complainant is entitled to a decree confirming his patent because: (1) the patent in this case is the highest evidence of title and carries with it the presumption that all the legal prerequisites necessary to its issuance have been complied with; that the officers charged with executing it have performed their duties in regard to the several acts required to be done by them, and the patent, being so issued by the state, cannot now be questioned either in a court of law or equity, except on the ground of fraud or mistake, neither of which have been established by the proof in this case; (2) because the patent recites that the patentee has complied with all the requirements of law in such cases made and provided, and such recital is binding on the State of Mississippi, and it cannot now, except upon a showing of fraud or mistake, be heard to deny the truth of said recital, and (3) the patentee, George Harper, has been guilty of no fraud in the procuring of said patent, but has done only that which was demanded and required of him, and the fault for the defect rests solely on the State of Mississippi, and he is not chargeable with the failure of the Land Commissioner to fix the price for the land in accordance with the statute.
No violation of Section 95 of the Constitution is here presented, that section not being applicable in transactions between the state (acting through its duly constituted officer) and the former owner actually in possession, claiming title in good faith, at the date of the issuance to him by the Land Commissioner of the patent under Chapter 174, Laws of 1936.
Land adversely held by a former owner is not donated by the state when the state surrenders its claim to the party in possession for a cash consideration.
Harvey v. Johnson, 111 Miss. 566, 71 So. 824; Fox v. Merchants' Bank Trust Co., 155 Miss. 188, 124 So. 321; Hays v. State, 96 Miss. 153, 50 So. 557; State v. Darby, 345 Mo. 1002, 137 S.W.2d 532, 539; The Indiana N. S.R.W. Co. v. City of Attica, 56 Ind. 476; State v. Broad River Power Co., 177 S.C. 295, 181 S.E. 41; City of Dallas v. Trammell (Tex.), 96 S.W.2d 110, 112; Trustees of Rutgers College v. Morgan, 71 N.J.L. 663, 60 A. 205, 207; Sundstrom v. Oak Park, 374 Ill. 632, 30 N.E. 58, 62; Green v. Thomas, 37 Ohio App. 489, 175 N.E. 226, 228; Broom's Legal Maxims, 165, 942, 949, 950, 951; Constitution of 1890, Secs. 66, 95; 28 C.J.S. 53; 13 Words Phrases, Per. Ed., 315. Greek L. Rice, Attorney General, by Jefferson Davis and W.B. Fontaine, Assistant Attorneys General, for appellant, on motion to correct decree.
At the very threshold of this discussion we are confronted with the question of whether the court (either this court or the chancery court) can, under Chapter 309 of the Laws of 1940, and in the absence of a cross-bill filed by the state, enter a decree cancelling the patent sought to be confirmed by the complainant. So far as we can ascertain, such is the only objection the court could have to ordering a cancellation of the patent involved in this case.
Generally, no affirmative relief can be granted in a cause in the absence of a cross-bill, but exceptions to this rule are frequently recognized.
30 C.J.S. 787, Sec. 372.
We feel sure that it will be admitted that the legislature could in any action dispense with the necessity of a cross-bill and direct the granting of affirmative relief when a cause is heard on its merits.
We feel that causes filed and heard under the provisions of Chapter 309 of the Laws of 1940 constitute an exception to the general rule, and the legislature intended for affirmative relief, if it be such, to be granted in all those cases where it appeared that the complainant is not entitled to a confirmation of his patent under the proceedings of this special statute. The legislature by this statute does not require the filing of a cross-bill as a condition precedent to the cancellation of a patent.
State v. Roell, 192 Miss. 873, 7 So.2d 867; Commodore Corporation v. Davis et al., 178 Miss. 376, 172 So. 867; Draughan v. State (Miss.), 13 So.2d 154; Laws of 1936, Ch. 174, Sec. 14; Laws of 1936, Ch. 287; Laws of 1940, Ch. 309; 21 C.J. 499, 500, 501, Sec. 598; 21 C.J. 667, 668, Sec. 849; 59 C.J. 1129, Sec. 669.
Argued orally by Jefferson Davis and W.B. Fontaine, for appellant, and by Garner Green, amici curiae.
On January 1, 1930, appellee Harper was the owner of the eighty acres of land involved in this case. Then, theretofore and at all times since, he has occupied it as his homestead. The taxes on it for the year 1930 were not paid; the land was sold to the state at a valid tax sale, and the period of redemption was allowed to expire.
Thereafter, and on May 20, 1936, appellee Harper filed with the Land Commissioner his application to purchase the eighty acres, and in the application he gave the facts truthfully as to the condition and value of the land. The value was fixed in the application at $650, which, according to the agreed statement of facts, was a fair and reasonable market value. On May 29, 1936, the Land Commissioner issued to appellee a forfeited tax land patent for the entire eighty acres for a recited consideration of $40, or fifty cents per acre; and, as shown by the Treasurer's receipt, this was all that was paid.
In answer to appellee's bill to confirm his said tax patent, the Attorney General contended that the patent was void because the consideration paid was so grossly inadequate as to amount to a donation, contrary to Section 95, Constitution of 1890, and he has cited State ex rel. v. Tate, 188 Miss. 865, 196 So. 755, and several other recent cases to the same effect. In response, appellee has contended that Section 95 of the Constitution has no application to an owner actually in possession and who has lost to the state the legal title through "some mistake, oversight or unintentional default."
We do not see that Section 95 of the Constitution has any place in this case. We may lay that section entirely aside, and, when so done, appellee's bill must fail because the patent was issued to him without statutory authority. It is fundamental in the law that the public lands of the state are not subject to disposal by any officer, whatever his appointment or station may be, except as fixed by valid statutory provisions. As to forfeited tax lands, wherein the state's title is good, as is admitted to be the case here, the Land Commissioner could, at the date of the patent here in question, dispose of the same only as provided by Sections 4 and 24, chap. 174, Laws 1936. Under Section 4 it is plainly provided that no forfeited tax land patent shall issue to purchasers in general for less than $1 per acre unless it reasonably appears that the actual value of the land is not as much as $1 per acre; and under Section 24, as a requisite to a patent to the original owner, he must pay all accrued taxes, damages and costs. It is admitted in the agreed statement of facts that the accrued taxes on the land at the date of the patent were more than one hundred dollars, to say nothing of damages and costs, and, as already mentioned, the Land Commissioner had before him at the date of the patent, the application showing the value of the land to be largely in excess of $1 per acre. It follows, therefore, from the undisputed facts, which displace all presumptions, that the patent was issued without authority of law and was inoperative to convey the state's title.
Appellee tendered, or rather offered to pay, into court "such an additional amount as will constitute the reasonable and lawful consideration for said land," and now asks that his forfeited tax patent be confirmed upon the ascertainment of the required amount and upon its payment. These are matters which, except as to the power of review, the law has committed to the land department and not to the courts. The consideration required by law is to be paid in the amount, and in the manner, and to the officers, designated by statute — not to a judicial court. Such being the case, the dismissal of appellee's bill, now ordered, will be without prejudice to his privilege to pursue, and conform to, the statutory requirements by which he may procure another patent.
Reversed and bill dismissed.
ON MOTION TO CORRECT DECREE.
As disclosed by the original opinion in this case, appellee Harper prosecuted a bill to confirm his alleged forfeited tax patent. We held the patent invalid and dismissed the bill. The Attorney General now contends that the decree should be not merely of a dismissal of the bill, but that it should proceed further and affirmatively cancel the said invalid patent. No cross-bill was filed by the state asking any such affirmative relief; but the contention is that the relief, although affirmative, could be granted under Chapter 309, Laws 1940, and particularly under Section 3 thereof, without a cross-bill.
The matter of the pleading and practice in cases under the cited act is succinctly covered, so far as concerns the point now before us, in Section 2 thereof, and in the following words: "And all of the pleadings in such cases shall be the same as in other cases in chancery, and the said cause shall be heard and determined as other cases in chancery." We must assume that the legislature knew, in the use of the quoted language, that in Bay v. Shrader, 50 Miss. 326, 331, the court had declared as follows: "It has been more than once held in this court, that if the defendant seeks more than a defeat of the relief sought by the complainant on the mortgage, or other instruments, the foundation of his claim — such as a cancellation of it or them — so as to set them entirely aside, and thereby prevents the possibility of future annoyance therefrom, he can only obtain such relief by a cross bill."
Motion overruled.