Opinion
No. 33761.
October 9, 1939.
1. TAXATION.
An occupant under obligation to pay reasonable sum to owner for use and occupancy of land cannot purchase land at tax sale while occupant is delinquent in such obligation, especially where use and occupancy are worth more than taxes.
2. TENANCY IN COMMON.
A tenant in common not authorized by his cotenant cannot execute lease of more than interest of tenant in common in the common property, even though tenant in common attempting to make such a lease is in possession of the whole of the common property.
3. LANDLORD AND TENANT. Tenancy in common. Use and occupation.
An unauthorized tenant in common cannot make a valid share-cropper's contract for the whole land, and occupant working the whole land under such contract would be "tenant at will" as to undivided portions of the other cotenants, and would be liable to the other cotenants in their respective portions for reasonable value of use and occupation of such portions.
4. LANDLORD AND TENANT.
The tenancy of person going into use and possession of land under inoperative or invalid contract or lease is "tenancy at will."
5. LANDLORD AND TENANT. Tenancy in common. Use and occupation.
Where tenant in common had no authority from cotenants to make contract with son of tenant in common for use and occupancy of the whole premises, share-cropper's contract between tenant in common and son for the whole premises was invalid, and son was in possession as tenant at will and was liable to cotenants for reasonable value of use and occupation of their portions of premises, and was disqualified to purchase cotenants' interest in premises at tax sale.
APPEAL from the chancery court of Humphreys county; HON. J.L. WILLIAMS, Chancellor.
Ruth Campbell, of Yazoo City, for appellants.
The rights of the co-tenants to the Patrick Vaughan estate, to have a partition of the land, owned jointly, cannot be defeated by the purchase of the land from the State of Miss., by an illegitimate son of one of the co-tenants, for his mother, Gertrude Duncan, as said purchase inures to the benefit of all the co-tenants, and Creed McCool, the illegitimate, cannot claim title to the land under these circumstances for himself.
Cameron v. Lewis, 56 Miss. 604; Fox v. Coon, 64 Miss. 465; Harrison v. Harrison, 56 Miss. 180; Humphreys v. Seal, 87 So. 446; Robinson v. Lewis, 68 Miss. 69; Walker v. Harrison, 75 Miss. 665; Clark v. Rainey, 72 Miss. 151.
Creed McCool was a co-signer of trust deeds executed to the Delta National Bank, with his mother, Gertrude Duncan, in the years 1931, 1932, 1933 to secure a joint note, given upon the land involved in this suit, which was sold to the State of Mississippi for taxes of 1931, in the year of 1932, and as such was under a duty and had a right to redeem said land from the State of Mississippi; and in the year of 1935 B.W. Smith furnished the money to Creed McCool to make a crop on this land and to redeem the land from the State of Mississippi from tax sale, as agent of Gertrude Duncan, his mother, one of the co-tenants, then residing on the land with Creed McCool, her illegitimate son.
Walker v. Harrison, 75 Miss. 180; Gaskins et al. v. Benson, 27 Miss. 675; Ford v. Smith, 137 So. 482, 162 Miss. 138; Union Savings Bank Trust Co. v. City of Jackson, 122 Miss. 577; Watson v. Vinson, 108 Miss. 600; Hauer v. Davidson, 113 Miss. 696; Simpson et al. v. Ricketts et al., 186 So. 320.
The testimony of B.A. Holiday, President of the Board of Supervisors of Humphreys County, that the minutes were not read and signed the day the Board adjourned but signed at the next meeting, the orders being entered during the interim, should not have been excluded but admitted to prove by parol that the record as now entered was not the true record, and if admitted then the assessment roll of 1930-1932 of real property was void, as the orders entered on the minutes relative to the assessment were not entered according to law, as the requirement that orders shall be entered and read before adjournment of the Board is mandatory.
Simpson County v. Burkett, 178 Miss. 44, 172 So. 329; Sec. 211, Code of 1930; Watson v. State, 166 Miss. 194; Hammond v. Gregg Co., 119 Miss. 72.
Major improvements, not necessary, made upon the land after the original bill and answer were filed were not made in good faith and should not be allowed; rents should have been allowed, as minors offered to redeem their property in equity, and the court below should not have held them strictly to the statutory scheme provided by Section 3264, Code of 1930.
Simpson v. Ricketts, 186 So. 318, 320; Cuevas v. Cuevas, 145 Miss. 456; Swalm v. Sauls, 141 Miss. 515.
R.H. Nason, of Belzoni, for appellees.
Creed McCool is the illegitimate son of Gertrude Duncan. Gertrude Duncan was a joint owner and a co-tenant with parties complainant on certain land in Humphreys County, Mississippi. Creed McCool owned no interest in the land. For a number of years and up to the year 1934 he was a share cropper on this land working under Gertrude Duncan. At the time this land sold to the State Creed McCool was indebted to no one on this land. He rented the land from Gertrude Duncan in 1934 and worked it in 1934 and 1935, paying her the rent. He purchased this land from the State in 1935. At this time he had a right to do so.
14 Am. Jur. 102, Sec. 34; Walker v. Harrison, 75 Miss. 665, 23 So. 392; Doty v. Heth, 52 Miss. 530; 35 C.J. 1246, Sec. 606; Rives v. Nesmith, 64 Miss. 807, 2 So. 174.
The record shows that B.W. Smith furnished money to Creed McCool to purchase this property; that Creed McCool tried to get all of the complainants to purchase before he did so and they refused. B.W. Smith was willing to furnish purchase money to all complainants but they refused to purchase. The record does not disclose that Creed McCool was the agent of his mother, Gertrude Duncan. Under the law he had a right to purchase in his own name and Gertrude Duncan, his mother, did not then or does not now object to said purchase.
Testimony of B.A. Holaday, President of the Board of Supervisors of Humphreys County, Mississippi, was excluded by the court. He could not impeach the minutes of his own Board.
28 R.C.L. 467, par. 55; 70 C.J. 180, Sec. 236; Griffith's Chancery Practice, Section 579; 1 C.J. 895, Sec. 282; Van Compen v. Snyder, 3 Howard 66, 32 Am. Dec. 311; President et al. v. Walker, 3 S. M. 409; State v. Montgomery et al., 35 Miss. 83; Allen v. Lenois, 53 Miss. 321.
The law provides that the permanent improvements made on the place shall be taken care of and be paid by the minors as their interest may appear. The record shows that Creed McCool paid all of the rent to Gertrude Duncan, who was a joint and co-tenant of the complainants. It shows that she, for a number of years, had operated this place and had apparent authority to lease the same.
Sec. 3264, Code of 1930; McMahon v. Yazoo Delta Lumber Co., 46 So. 57, 92 Miss. 459; Hicks v. Blakeman, 74 Miss. 459, 21 So. 7 and 400; Edwards v. Butler, 47 So. 801; 28 C.J. 858, Sec. 42; 21 R.C.L. 19, Sec. 13; 38 Cyc. 105, Sec. 2.
The land in question was owned by Patrick Vaughan, who died intestate leaving his wife and six children as his sole heirs at law. The widow subsequently died intestate, so that her interest went to the six children, all as tenants in common. Gertrude, one of the children and owning a one-sixth undivided interest as a tenant in common, remained on the land, all the others having gone elsewhere. Gertrude has a son named Creed McCool, who remained on the land with her; and during the years 1931 and 1932 he cultivated the entire property under a so-called share-cropper contract with his mother. The terms or precise nature of this arrangement is not shown. There is no sufficient evidence, if it may be said that there is any evidence at all, that any of the other co-tenants joined in this contract or authorized it or knew anything of the particulars thereof, or that they subsequently ratified it, although one of them said that she supposed the arrangement was such as in any event to first take care of the taxes. Creed paid no rent to any other than his mother, and the share or amount paid to her for the stated two years is not disclosed. The testimony shows, however, that a fair annual rental or compensation for the use and occupation exceeded the annual taxes. The testimony is ample to show that Creed knew his mother was only a cotenant of an undivided part of the property.
The land was assessed for taxes for the year 1931 to the Pat Vaughan Estate, and the taxes not being paid, the entire property was sold to the State at the tax sale of 1932. After the period of redemption had expired, Creed McCool obtained a forfeited tax land patent for it. The bill before us is by several of the tenants in common, making the others defendants, and, in its principal aspect, is to set aside or cancel the patent obtained by Creed; and we are of the opinion that the bill should have been sustained.
The rule in this State, as declared in the early case Gaskins v. Blake, 27 Miss. 675, is that a party, who occupies the lands of another under such circumstances as will impose upon him in the law an obligation to pay to the owner or owners a reasonable sum as compensation for the use and occupation, is disqualified during such occupancy to purchase the land at a tax sale when the occupant is delinquent in whole or in part in the payment for the said use and occupation, and especially so when the use and occupancy is worth more than the amount of the taxes. In this State many, if not most, owners of lands occupied by others, look, and must look, to the income from the lands out of which to pay the taxes thereon; wherefore it may justly be said that when an occupant due to pay to the owner a compensation for the use and occupation fails to do so and the land becomes delinquent of its taxes, the occupant has contributed to the delinquency and, in consequence, may not profit thereby.
Appellee says, however, that he was a mere share-cropper on the land, was therefore to be classed as a laborer thereon who was paid for his labor by a share in the crop, and that he was under no obligation to pay for the use and occupation, that obligation being solely that of his mother for whom he worked. Appellee cites Doty v. Heth, 52 Miss. 530. There is nothing in the record, however, to show that the crop-sharing contract between Creed and his mother was any different from those in Schlicht v. Callicot, 76 Miss. 487, 24 So. 869, or Alexander v. Zeigler, 84 Miss. 560, 36 So. 536, or Williams v. Sykes, 170 Miss. 88, 93, 154 So. 267, 727, in each of which it was held that the relation of landlord and tenant existed. The facts, as already mentioned, are not developed on this point; but it makes no difference, for the reason that the contract under which appellee claims to have been a mere share-cropper was made solely with his mother, who was the owner as a tenant in common of only an undivided one-sixth interest in the land and, as already said, it is not shown that she had any authority from her cotenants to make any contract with appellee or any other person for the use and occupancy of any more than that which was the equal of her portion or share.
A tenant in common, not authorized thereto by his cotenant, cannot execute a lease of more than his own interest in the common property that will bind them without subsequent ratification, even though the tenant in common attempting so to lease is in possession of the whole land. 62 C.J., pp. 536-7; Miles v. Fink, 119 Miss. 147, 152, 80 So. 532. Within this rule it follows that one unauthorized tenant in common cannot make a valid share-cropper's contract for the whole land; and an occupant working the whole land under such a contract would be a tenant at will as to the undivided portions of the other co-owners, under the general principle that when one goes into the use and possession of land under an inoperative or invalid contract or lease, his tenancy so long as so held is a tenancy at will. 35 C.J., p. 1124, and cases cited in the notes. And being such a tenant and producing crops thereby, he is liable to the several co-owners in their respective portions for the reasonable value of the use and occupation of those portions. 66 C.J., p. 92. Appellee, the tenant at will, admits, as already stated, that he paid nothing to the owners of the undivided five-sixths interest in the land.
Appellee was disqualified to purchase the interest of his mother's cotenants in the common property at the tax sale, and thus was disqualified to acquire the State's title derived therefrom. His attempt so to do amounts only to a redemption.
With this principal question disposed of, the other issues can be better developed and determined on a new hearing, hence we decide nothing as to them.
Reversed and remanded.