April 7, 1952. Certiorari Denied U.S. Supreme Court, 97 L.Ed. 52.
1. Tax deed — void for want of description — adverse possession — two-year statute.
A tax deed wholly void will not furnish color of title for application of the two-year statute of limitations, but if it contains an intelligible description of the property, although otherwise void, it will form a sufficient color of title for the operation upon it of the two-year statute of adverse occupancy by the tax purchaser or his vendees. Secs. 716, 717 Code 1942.
2. Adverse possession — tax deed — two-year statute.
The necessary facts to acquire title by adverse possession and preclude recovery by another against such adverse claimant are the same under the two-year statute as under the general ten year statute of adverse possession. Secs. 711, 717 Code 1942.
3. Taxation — striking void sales from the list of state owned lands — when not permissible.
Where described lands had been conveyed by the State by a forfeited land patent and the title had been confirmed in the purchaser by a proper suit in chancery to which the State and Land Commission were parties, a refusal by the officers, designated by statute, to strike the lands from the list of lands forfeited to the State was proper. Secs. 1315-1322, 4073, 4077 Code 1942.
4. Public lands — patents by the State, questioned only by the State.
Only the State can question the validity of its patents.
5. Appeal — right result under the facts.
If the facts support the decree of the trial court and it reached the right result, the decree will be affirmed even though the trial court assigned erroneous reasons for its conclusion; so that where under the facts the decree is supported under the two-year statute of limitations as to tax sales to the State, the fact that the trial court applied the three-year statute will not require a reversal. Secs. 716, 717 Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the chancery court of Lawrence County; NEVILLE PATTERSON, Chancellor.
J. Kenneth Riley, and G.L. Martin, for appellants.
I. The chancellor was in error in overruling the demurrer to the cross-bill. A tax deed void on its face is not color of title, and is not protected by any statute of limitations. Tax sales are proceedings in invitum. A tax deed void on its face is not prima facie evidence of good title. Purchasers of tax titles purchase with notice and purchase at their own risk and peril. Chap. 174, Laws 1936; Secs. 716, 717, 4071, 4072, 4073, 4075, 4076, 4077, 4135, 4142, 4143, 9923 Code 1942; Griffin v. Mixon, 38 Miss. 424; Smith v. Hendrix, 181 Miss. 229, 178 So. 819; White v. Noblin, 183 Miss. 92, 183 So. 914; Jackson v. Day, 193 Miss. 379, 9 So.2d 789; Sec. 79 Constitution 1890; 8 S. M. 197, 209; Minor v. Pres. Selectmen of Natchez, 4 S. M. 602, 631; Sec. 4328 Code 1906; State v. So. Pine Co., 205 Miss. 80, 38 So.2d 442; Nelson v. Abernathy, 74 Miss. 165; Myerkort v. Warrington, 19 So.2d 433, citing 61 C.J. 1427; Pearce v. Perkins, 70 Miss. 276, 12 So. 205; Patterson v. Morgan, 161 Miss. 607, 138 So. 362; Walker v. Polk, 208 Miss. 389, 410, 44 So.2d 477; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Cuevas v. Cuevas, 145 Miss. 406, 110 So. 865; Bowers v. Chess, 83 Miss. 218; McGehee v. Martin, 53 Miss. 519; Byrd v. Dickson, 152 Miss. 605, 120 So. 562; Leavenworth v. Reed, 106 Miss. 722; Bailey v. McRae, 76 Miss. 557, 169 So. 887; French v. McAndrew, 61 Miss. 187;
Bell v. Gordon, 55 Miss. 45; McClanahan v. Barrow, 27 Miss. 664; 51 Am. Jur. Sec. 1158; Cooley on Taxation, Vol. 4 (4th Ed.), Secs. 1457, 1510, 1551; Blackwell's Power to Sell Land for Non-Payment of Taxes, (4th. Ed.), Sec. 364; 27 L.R.A. (N.S.) pp. 340, et seq.; Redfield v. Parks, 132 U.S. 239, 33 L.Ed. 329, 10 S.Ct. 83; 113 A.L.R. 1343; Black on Tax Titles, Sec. 283; 51 Am. Jur. Sec. 1157; State v. King, 77 W. Va. 37, 87 S.E. 170, cited in 1 Am. Jur., subnote 8, Sec. 191; 61 C.J., p. 1431; Duffeback v. Hawke, 115 U.S. 392, 407; Hamner v. Lbr. Co., 100 Miss. 349, 56 So. 466; Dingey v. Paxton, 60 Miss. 1038; Kennedy v. Sanders, 90 Miss. 524, 539; Clay v. Moore, 65 Miss. 81; Brougher v. Stone, 72 Miss. 647; Butts v. Ricks, 82 Miss. 533; Smith v. Leavenworth, 101 Miss. 238, 57 So. 803; Hanna v. Renfro, 32 Miss. 125; Root v. McFerrin, 37 Miss. 17; Dimitry v. Lewis, 150 Miss. 818, 117 So. 265; Cox v. Richardson, 186 Miss. 577, 191 So. 99; Baldwin v. Highway Dept., 187 Miss. 642, 193 So. 789; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Secs. 2287, 2288, Code 1930; Thompson v. Reed, 199 Miss. 129, 23 So.2d 888; Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102; Bruce v. Smallwood, 188 Miss. 771, 196 So. 277; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 91; Leavenworth v. Claughton, 19 So.2d 815; Hooper v. Walker, 201 Miss. 158, 29 So.2d 72; Newman v. Lbr. Co., 162 Miss. 581, 139 So. 838; Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 791; Sec. 1314 Code 1942; Toler v. Love, 170 Miss. 252, 154 So. 711.
II. The chancellor was in error in dismissing as to State of Mississippi and the Land Commissioner and in failing to cancel the validation proceedings and in failing to hold the purported land patent void and in failing to cancel the purported land patent. Chap. 174, Laws 1936; Secs. 1315-1321 Chap. 309 Laws 1940; Mead v. Day, 54 Miss. 58, 62; State v. So. Pine Co., 205 Miss. 80, 38 So.2d 442, 447; Smith v. Hendrix, 181 Miss. 229, 178 So. 819; White v. Noblin, 183 Miss. 92, 183 So. 914; Secs. 1109, 1657 Code 1942; Malvezzi v. Gully, 189 Miss. 20, 193 So. 42, 43; Noe v. Gully, 189 Miss. 1, 9; Freeman on Judgments, (4th Ed.), Vol. 2, Sec. 335; Griffith's Chan. Prac., Sec. 110 (1st Ed.); Comfort v. Landrum, 126 Miss. 576, 89 So. 231; 52 So.2d 658; State v. Roell, 192 Miss. 873, 7 So.2d 867; State v. Lewis, 192 Miss. 890, 7 So.2d 871; State v. Magnolia Bank, 53 So.2d 79, 84.
III. The Land Commissioner is a trustee of the public and violated his trust in failing to comply with Chap. 174 Laws 1936, and having failed in that, the patent should have been issued to R.I. Carney; and the failure to do these denied to R.I. Carney due process, and the chancery court should have denied Southern Naval Stores all relief and should have cancelled the patent and the other instruments. That failure to comply with the law thus worked fraud in law on R.I. Carney and these complainants. Bradley v. Villere, 66 Miss. 399; Chap. 25, Ex. Ses. 1931; Chap. 174 Laws 1936; Secs. 4076, 4077, 4073, 4135, 1821, 9923 Code 1942; Chap. 30, S.B. 12, Ex. Ses. 1938; Sec. 268 Const. 1890; State v. So. Pine, 205 Miss. 80, 38 So.2d 442; State v. Rogers, 39 So.2d 533; Cochran v. Baker, 60 Miss. 282; Smith v. Hendrix, 181 Miss. 229, 178 So. 819; White v. Noblin, 183 Miss. 92, 183 So. 914; Brown v. Sawmill Co., 119 Miss. 432, 81 So. 124; State v. Butler, 21 So.2d 650, 653, citing Sec. 6037 Code 1930 and Sec. 4072 Code 1942; Webb v. Anderson, 206 Miss. 399, 40 So.2d 189, 191; 189 Miss. 647, 193 Miss. 781, 11 So.2d 196; Griffith v. Mixon, 38 Miss. 424; Laurel v. Rowell, 84 Miss. 435, 441.
IV. The sovereignty of the State of Mississippi would be sullied and dishonored to impute to her a voice speaking that a tax deed void on its face gives color of title upon which adverse possession may be predicated. The State speaks her own sacred and true voice and not through the voice of Jacob. Hamner v. Lbr. Co., 100 Miss. 349, 56 So. 466; Root v. McFerrin, 37 Miss. 17; Dingey v. Paxton, 60 Miss. 1054; Cogburn v. Hunt, 56 Miss. 718; Rainy v. Hardwood, 91 Miss. 690, 45 So. 367; Roebuck v. Bailey, 176 Miss. 234, 166 So. 358; Salter v. Polk, 172 Miss. 263, 159 So. 855; McMullin v. Erwin, 58 Ga. 427, 429; Powell on Actions for Land (Rev. Ed) Sec. 295; Mitchell v. Bond, 84 Miss. 72, 83.
V. The learned Attorney-General was in error in failing to find that the lands patented did not belong to the State, and the Land Commissioner was in error in failing to cancel the patent. Secs. 4142, 4143, 4144 Code 1942; Chap. 174 Laws 1936; Wilson v. State, 116 Miss. 573, 77 So. 606; State v. Southern Pine Co., 205 Miss. 80, 38 So.2d 442.
VI. Southern Naval Stores cannot successfully plead Sec. 716, Code 1942, for the reason that the only possession claimed is by a barbed-wire fence across about 8.6 acres. Sec. 716 is an occupation statute (tax statute) and cannot be pleaded. There is no such thing known as occupying land by means of a barbed-wire fence; some of this here being admittedly a two-strand barbed-wire fence. To hold that occupation of land under Sec. 716 can be made by a barbed wire fence deprives these appellants of due process of law under Sec. 14 of Constitution of 1890 and denies them their rights under both the due process of law clause and the equal protection of the laws clause of the 14th amendment to U.S. Constitution. Palmetto Fire Ins. Co. v. Allen, 141 Miss. 690, 105 So. 769; McNamee v. Relf, 52 Miss. 426; Alexander v. Polk, 39 Miss. 755; Chap. 174 Laws 1936; Smith v. Anderson, 193 Miss. 161, 8 So.2d 251; Barker v. Jackson, 90 Miss. 627; Patterson v. Murdock, 161 Miss. 807, 138 So. 362; Thompson v. Reed, 199 Miss. 129; Lee v. Smith, 189 Miss. 647; Roberts v. Lewis, 119 Miss. 628, 81 So. 481; Roebuck v. Bailey, 176 Miss. 234, 166 So. 258, 360; 2 C.J. 70, Sec. 34; Elliott v. Peare, 35 U.S. (10 Pet.) 412, 9 L.Ed. 475; Mitchell v. Bond, 84 Miss. 72; Cohn v. Smith, 94 Miss. 517; Secs. 716, 906, 1469, 1470, 4071, 4072, 4073, 4076, 4077, 4135, 4142, 4143 Code 1942; Carroll v. Gibson, 23 Ga. 539; Williams v. Wallace, 78 N.C. 354; Walker v. Polk, 208 Miss. 389, 44 So.2d 477; State v. Butler, 21 So.2d 650, 653; 1 Am. Jur. subnote 8, Sec. 191; State v. King, 77 W. Va. 37, 87 S.E. 170; Kennedy v. Sanders, 90 Miss. 524, 544.
VII. The decree and judgment of the chancery court deprive appellants of due process of law under Sec. 14 of the Miss. Constitution and denies them their rights under the due process clause and the equal protection of the laws clause of the 14th amendment to the U.S. Constitution for the reason title to lands cannot be divested out of the citizen except by sale, and a tax deed void on its face is not prima facie evidence of valid sale and is, therefore, not color of title. That the State Land Commissioner had no authority to sell the land, and appellees Southern Naval Stores knew the State had no title and could convey none; and thus acted in bad faith and cannot claim under color. Griffin v. Mixon, 38 Miss. 424; Judge Clayton in 12 S. M. 498, 505; Doe dem. Helm v. Natchez Ins. Co., 8 S. M. 197, 209; Selectmen of Natchez v. Minor, 4 S. M. 602, 631; Kennedy v. Sanders, 90 Miss. 524, 539; Trial Guide, Vol. 1, p. 130; Chap. 25, Ex. Ses. Laws 1931; Smith v. Hendrix, 181 Miss. 229, 178 So. 819; White v. Noblin, 183 So. 914; Jackson v. Day, 193 Miss. 379, 9 So.2d 789; Hooper v. Walker, 29 So.2d 72; Sec. 4328 Code 1906; Hamner v. Lbr. Co., 100 Miss. 346; Secs. 716, 9923 Code 1942; Bailey v. McRae, 176 Miss. 557, 169 So. 887; Sec. 539 Code 1880; Myerkort v. Warrington, 19 So.2d 433; 61 C.J. 1427; Sec. 1709 Code 1871; Matthews v. Blake, 27 L.R.A. 346; Redfield v. Parks, 132 U.S. 239; Moore v. Brown, 11 How. 414, 13 L.Ed. 751, 756; 2 C.J. Adverse Possession, Sec. 411, p. 202; Compton v. Newton, 129 Ga. 619, 59 S.E. 270; Brown v. Wells, 44 Ga. 573; Blackwell's Power to Sell Land for Non-Payment of Taxes (2nd Ed.), Secs. 364, 1457, 1551; 61 C.J., Tax Titles, Sec. 1897 p. 1347; 113 A.L.R. 1343; Black on Tax Title, Sec. 283; Duffieback v. Hawk, 115 U.S. 392, 407; Chief Justice John Marshall, 6 Cranch 87; Dingey v. Paxton, 60 Miss. 1054; Chap. 174 Laws 1936; Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311; Secs. 3249, 3256 Code 1930; Mitchell v. Bond, 84 Miss. 72, 84; Fairley v. Howell, 159 Miss. 668, 131 So. 109; 51 Am. Jur. Sec. 1061, p. 924-5; Sec. 1141, Sec. 1155 p. 995; City of Natchez v. Minor, 10 S. M. 255; Pearce v. Perkins, 70 Miss. 277; Patterson v. Morgan, 161 Miss. 807, 138 So. 362.
VIII. He who comes into equity must come with clean hands; he who seeks equity must do equity; that Southern Naval Stores, by cross-bill, seeking affirmative relief, come with hands smeared with fraud, bad faith, inequity, and do not propose to do equity; that the State Land Commissioner breached his trust amounting to fraud in law against R.I. Carney and his heirs and these cross-complainants are active participants and beneficiaries of that fraud, and should be denied relief; that the holding of the trial court deprives these complainants and the Carney heirs due process of law under both the Mississippi Constitution and the 14th amendment to the U.S. Constitution. Griffith's Chan. Prac., Sec. 42; State v. Rogers, 39 So.2d 533; Southern Pine Co., 205 Miss. 80, 38 So.2d 442; 2 C.J., Adverse Possession, Sec. 411, p. 202; Compton v. Newton, 129 Ga. 619; Mitchell v. Bond, 84 Miss. 72, 84; Vol. 1, Am. Eng. Ency. Law (2nd Ed.), p. 861, par. 4; Chap. 174, Laws 1936; Secs. 4071, 4072, 4073, 4076, 4077, 4135, 4143 Code 1942.
Henry Mounger, and E.B. Patterson, for appellees.
II. Elements and proof required in acquiring title by adverse possession. Sec. 145, p. 708, 2 C.J.S.; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Native Lbr. Co., et al. v. Elmer, 117 Miss. 720, 78 So. 703; 2 C.J.S., Sec. 223 b(2) pp. 835-6, Sec. 616, p. 275, Sec. 223 c, p. 836; Kersch, et al. v. Lyons, et al., 195 Miss. 598, 15 So.2d 768; Lindenmeyer, et al. v. Gunst, et al., 70 Miss. 693, 13 So. 252; Cox v. Richerson, et al., 186 Miss. 676, 191 So. 99; McIntyre, et al. v. Harvey, et al., 158 Miss. 16, 128 So. 572; Daniels v. Jordan, 161 Miss. 78, 134 So. 903; May v. Culpepper, 177 Miss. 811, 172 So. 336.
III. Defendants claim title under and by virtue of occupation of the land for three years subsequent to the issuance of the tax patent. Sec. 716 Code 1942; Brougher, et al. v. Stone, 72 Miss. 647, 17 So. 509; Pearce v. Perkins, et al., 70 Miss. 276, 12 So. 205; Butts v. Ricks, et al., 82 Miss. 533, 34 So. 354; Smith, et al. v. Leavenworth, 101 Miss. 238, 57 So. 803; Hamner, et al. v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; Dimitry, et al. v. Lewis, et al., 150 Miss. 818, 117 So. 265; Byrd v. Dickson, 152 Miss. 605, 120 So. 562; Cox v. Ricerson, et al., 186 Miss. 576, 191 So. 99, 124 A.L.R. 1138; Baldwin v. Miss. State Highway Dept., 193 So. 789; Smith, et al. v. Anderson, et al., 193 Miss. 161, 8 So.2d 251.
IV. Defendants claim title to the subject land under and by virtue of adverse possession under the tax patent for a period of more than two years prior to the institution of the suit. Sec. 717 Code 1942; Grant v. Montgomery, et al., 193 Miss. 175, 5 So.2d 491; Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Thompson v. Reed, et al., 199 Miss. 129, 23 So.2d 888; Hooper v. Walker, et al., 201 Miss. 158, 29 So.2d 72; Smith, et al. v. Myrick, 201 Miss. 647, 29 So.2d 924; Ellard, et al. v. Logan, 39 So.2d 485.
V. Defense of laches is applicable in this case. Sec. 33, p. 37, Griffith's Chancery Practice, also p. 365.
VI. Answer to brief of appellants.
Answer to appellants' point I. Hamner, et al. v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; Smith, et al. v. Anderson, et al., 193 Miss. 161, 8 So.2d 251; Jones v. Russell, 187 Miss. 827, 194 So. 290; Thompson v. Reed, et al., 199 Miss. 129, 23 So.2d 888; Jefferson, et al. v. Walker, et al., 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Miss. Law Journal, March-May 1946, p. 390; Meyerkort, et al. v. Warrington, et al., 198 Miss. 29, 19 So.2d 433, 20 So.2d 708; Pierce v. Perkins, 70 Miss. 276, 12 So. 501.
Answer to appellants' point II.
Answer to appellants' point III.
Answer to appellants' point IV.
Answer to appellants' point V.
Answer to appellants' point VI.
6. Courts — final judgment Supreme Court when five judges participate.
Under the amended Constitution and the rules of the Court a decision by five of the nine judges of the Supreme Court is a final decision and as such is appealable to the United States Supreme Court.
Headnote as approved by Hall, J.
H.L. Carney et al., appellants and complainants in the court below, instituted this action in the Chancery Court of Lawrence County against V.A. Anderson et al., seeking to cancel the claims of appellees to 80 acres of land in Lawrence County. Appellants claimed as heirs of the original owner of the lands at the time of the tax sale to the State on August 3, 1932. Appellees claimed under that tax sale and a forfeited tax-land patent from the State, to J.D. Willoughby, dated July 23, 1941. Willoughby conveyed his interest in the land to Givens by warranty deed of October 17, 1941, and Givens conveyed his interest in the same lands to appellees by warranty deed dated November 29, 1941. The chancery court found that, although the tax sale to the State was void, appellees had obtained title to the lands by adverse possession for more than three years under Code of 1942, Sec. 716, the three-year, actual-occupancy statute for tax sales. Therefore, the trial court dismissed appellants' bill with prejudice, and confirmed appellees' title against appellants as prayed in the cross-bill. We affirm the result of that decree.
The first contention of the appellants is that the tax sale to the State on August 3, 1932 was void on its face, since it was made at a time not authorized by law, and that a tax deed which is void on its face cannot constitute color of title and cannot be the basis of an adverse possessory claim under Code of 1942, Sections 716 or 717. It is true that the tax sale of August 3, 1932 was void under the cases of Smith v. Hendrix, 1937, 181 Miss. 229, 178 So. 819, and White v. Noblin, 1938, 183 Miss. 92, 183 So. 914. (Hn 1) However, Hamner v. Yazoo Delta Lumber Co., 1911, 100 Miss. 349, 56 So. 466 settled in the affirmative the rule in this state that a void tax deed may serve as color of title. In that case the deed was void because based upon an invalid assessment. The Court in a lengthy opinion applied the three-year occupancy statute, and expressly held that a void tax deed may constitute color of title. It considered in detail the reasons for this rule, and pointed out that the vitalizing element of the statute was the possession, and that a refusal to apply the plain terms of the statute would in effect repeal it.
This principle has been followed in Smith v. Anderson, 1942, 193 Miss. 161, 8 So.2d 251; Jones v. Russell, 1940, 187 Miss. 827, 194 So. 290; Thompson v. Reed, 1945, 199 Miss. 129, 23 So.2d 888. Jones v. Russell, supra, involved a tax sale to the state made on August 1, 1932, and the Court applied the two-year statute of adverse possession, Sec. 717. The Court there refused to pass upon the validity of the tax sale since [ 187 Miss. 827, 194 So. 291] "A decision of this question would be on the merits, — the very thing which the statute was intended to cut off * * *." It was held that the sale to the state "vested title in the State and its vendees prima facie and possession thereunder is prima facie rightful." The decree of the trial court holding that the vendee of the state had obtained title by adverse possession was affirmed.
The most recent case applying Code Sec. 717 is Broadus v. Hickman, 1951, 210 Miss. 885, 50 So.2d 717. There the tax sale was void because of an improper method of sale, but an adverse possessory title under Section 717 was found.
The general rule elsewhere as to a void tax deed constituting color of title seems to be in accord with the Hamner rule. 1 Am. Jur., Adverse Possession, Sec. 201.
Appellants rely primarily upon the original opinion in Meyerkort v. Warrington, Miss. 1944, 19 So.2d 433. That opinion, however, was withdrawn by the Court as a result of the settlement of the case by the parties, in 1945, 198 Miss. 29, 20 So.2d 708. The original withdrawn opinion has been cited with approval in Walker v. Polk, 1950, 208 Miss. 389, 44 So.2d 477, 485, on abandonment, and in Crooker v. Hollingsworth, 1950, 210 Miss. 636, 46 So.2d 541, 544, 50 So.2d 355, on equitable estoppel. Appellants rely upon the statement in the original Meyerkort opinion that the sale to the State was void for want of description, and that "statutes of limitation do not run in favor of the holder of a tax deed void on its face. [19 So.2d 436.]" But there the Court was dealing with a tax sale which contained a void and unintelligible description of the property, and it was properly said that "in a tax paper such as in this case there are no calls." That statement is correct where the description of the property in the tax deed is void, but that situation does not exist here. The applicable statute is Code of 1942, Sec. 717, which provides in part as follows:
"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. * * * The completion of the limitation herein prescribed to bar any action shall defeat and extinguish all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the State of Mississippi and its patentees, and it shall vest in the State, and its patentees, a fee simple title to such lands."
Appellants also argue that the finding of the chancery court that there had been sufficient adverse possession to comply with Section 717 is against the great weight of the evidence. Without lengthening this opinion by discussing the testimony in detail, it is sufficient to say that the record amply supports the decree of the trial court. In Broadus v. Hickman, supra [ 210 Miss. 885, 50 So.2d 719], it was held that (Hn 2) "the necessary facts to acquire title by adverse possession and preclude recovery by another against such adverse claimant are the same under said Section 717, the two-year tax statute, as under Section 711, Code 1942, the ten year statute."
The State of Mississippi and the State Land Commissioner were made original parties defendant to the suit. In 1945 the present appellees brought an action against the State in the chancery court to confirm their forfeited tax-land patent, as authorized by Code of 1942, Sections 1315-1322. The final decree in that case adjudicated that the patent was a valid patent, that no fraud had been perpetrated upon the State in obtaining it, and confirmed the patentees' title as against the State. In September 1949, attorneys for the present appellants requested the Land Commissioner and Attorney General to cancel by an administrative action the tax sale to the State and the patent issued eight years before. Code of 1942, Secs. 4073 and 4077 authorize the Land Commissioner, with the approval of the Attorney General, to strike from the list of lands sold to the State those which were obtained by void sales, and, as Sec. 4077 says, which "are not the property of the State. (Hn 3) These officers properly refused to take this requested action after the patent had been issued, the patent had been confirmed against the State in 1945, and whatever title existed was in the grantees of the patentee. Appellants now argue that these officers violated their duty under Code Secs. 4073 and 4077, and that the chancery court erred in dismissing this action against the State and the State Land Commissioner to compel them to so act. Without considering the doubtful question as to whether the court could direct the requested action from these officers prior to the time the State conveyed away its title, in this case no such relief is available because the State has many years ago conveyed away whatever title it had to the property.
Moreover, (Hn 4) it is well established that only the State can question the validity of its patents, and that issue has already been adjudicated in the 1945 validation proceedings. Reliance Investment Co. v. Johnson, 1940, 188 Miss. 227, 193 So. 630, 194 So. 749; Jones v. Russell, 1940, 187 Miss. 827, 194 So. 290. Whatever title the State had has been conveyed to appellees. And appellants in the present action have had the opportunity of adjudicating both the validity of the tax sale as against them and whether appellees have obtained title by adverse possession.
The chancellor in his opinion stated that appellees pleaded Code Secs. 716 and 717, "but conceded in their arguments that the latter statute does not apply, hence it is not here considered * * *". Appellants argue that therefore appellees cannot claim title under Section 717. But the appellees pleaded Section 717 in both their answer and cross bill, and no part of the record reflects that they withdrew those pleas. Moreover, (Hn 5) if the facts support the holding of the trial court and it reached the right result, this Court will affirm the decree even if the lower court assigned erroneous reasons for its conclusion. We do not think that under the facts Section 716, the three-year actual occupancy statute was applicable. Section 717, the two-year statute, deals expressly with sales to the State, encompasses possession under color of title, and is pertinent to the present facts.
McGehee, C.J., and Hall, Lee and Arrington, JJ., concur.
The decree of the lower court was affirmed on April 7, 1952, five of the judges of this Court participating. 58 So.2d 13. A suggestion of error was overruled by the same five judges on May 19, 1952.
Appellants have now filed a motion seeking withdrawal of the original opinion and affirmance on suggestion of error and further asking that the case be remanded to the docket for reargument before the Court in banc on the suggestion of error. Such a motion is novel under our procedure and would be overruled without an opinion but for one point which appellants argue. They state that they desire to appeal to the Supreme Court of the United States and that under the holding of that Court in Gorman v. Washington University, 316 U.S. 98, 62 S.Ct. 962, 86 L.Ed. 1300, they cannot appeal from a decision of any number of our judges less than the entire court in banc.
In the cited case there was under consideration a provision of the Constitution of Missouri whereby the Supreme Court of that state was divided into two divisions and under which it was provided that when a federal question is involved, the cause, on the application of the losing party, shall be transferred to the entire court for its decision. A rule of the Supreme Court of Missouri was to the same effect. One division of the Missouri Supreme Court affirmed the cause and on application to the United States Supreme Court for a writ of certiorari to review the judgment of affirmance it was held that the judgment was not final unless and until an application had been filed for a review in banc by the Missouri Supreme Court.
We have no such provision in the Constitution of this State nor do we have such a rule of this Court. Section 145A of our Constitution, as recently amended, provides that any five of the nine members of the Court shall constitute a quorum. Since the adoption of that amendment we do not consider any cases in banc except in the event there is a disagreement among the five who originally heard the case and except in cases where a death sentence has been imposed and except in cases where we are confronted with overruling a prior decision and except in those cases which are considered by the panel of five judges to be of such importance that a consideration in banc is deemed advisable. (Hn 6) Under our Constitution and rules the judgment heretofore entered is a final judgment. Hays Finance Co. v. Bailey, Miss., 56 So.2d 806.
Nevertheless, we have considered appellants' motion in banc so that their right of appeal may be preserved if there be any question about it, and the motion is overruled.
McGehee, C.J., and Roberds, Alexander, Lee, Kyle, Holmes, Arrington and Ethridge, JJ., concur.