Opinion
No. 39514.
March 16, 1955.
1. Confirmation of title — tax deed — exhibit to complaint — prima facie evidence — validity of tax sale.
Copy of tax deed attached as exhibit to complaint seeking confirmation of tax title was prima facie evidence that tax sale was valid and complied with every prerequisite. Sec. 1314, Code 1942.
2. Confirmation of title — pleading — bill sufficient — as against demurrer.
Bill of complaint, seeking confirmation of tax title to land, with certified copies of tax deeds attached as exhibit, and showing that such land had been patented out of the government, thereafter platted of record, assessed according to description in recorded plat, and sold to State and city for delinquent taxes, that State thereafter executed to city a forfeited tax patent for such land, that land had been conveyed to complainant by city's grantee and that complainant did not know under what claim defendants might be claiming portion of land, was sufficient to withstand demurrer. Secs. 1314, 9772, 9775, Code 1942.
3. Taxation — forfeited tax patent — cancellation by State as to part of land described therein — effect.
Cancellation of original forfeited tax patent from State to city as to land marked out in red did not avoid patent as to description of land conveyed thereby through which red lines were not drawn.
4. Taxation — assessments — name of subdivision — as furnishing clue — parol evidence.
The use of name of addition in describing, according to recorded plat thereof, land assessed and sold for delinquent taxes to State and city furnished sufficient clue to show what land was assessed and sold, where proof showed that there was no other subdivision or addition bearing such name in city or county named in description. Secs. 9772, 9775, Code 1942.
5. Taxation — assessment — sale — omission — not fatal defect.
Omission of the abbreviation "Dr." from name of subdivision, in describing according to recorded plat of subdivision land in "Dr. Garraway Addition" assessed and sold for delinquent taxes to State and city, was not a fatal defect. Secs. 9772, 9775, Code 1942.
6. Adverse possession — title — in State — city.
Adverse possession did not operate to vest title to land while State and city held tax title thereto. Sec. 104, Code 1942.
7. Adverse possession — defendant did not acquire title by.
Where tax title of State and city had matured before defendants in possession of land acquired title thereto by adverse possession and suit to confirm tax title acquired by mesne conveyance from city was commenced within ten years after city parted with its title, defendants did not acquire title to land by adverse possession. Sec. 104, Constitution 1890; Sec. 1314, Code 1942.
8. Taxation — confirmation of title — estoppel — not established by evidence.
Suit to confirm tax title acquired by mesne conveyances from city was not barred by estoppel in absence of proof that either State or city had induced defendants to make improvements on land or that defendants had changed their situation in reliance on acts, representations or silence of plaintiff and had suffered damage therefrom or had been placed at a disadvantage by plaintiff. Sec. 1314, Code 1942.
9. Taxation — confirmation of title — laches — not established.
Such suit was not barred by laches, where suit was commenced less than ten years after city parted with its title. Sec. 1314, Code 1942.
10. Taxation — confirmation of title — evidence — properly excluded.
Where land in city had been validly assessed and sold to State and city for delinquent taxes according to description of land in recorded plat of subdivision, former owner, who had platted subdivision, could not deprive State or city of the property thus acquired by subsequent statement that fence was the dividing line between platted subdivision and land retained by former owner as his home, and testimony as to such statement was inadmissible in suit to confirm tax title acquired by mesne conveyances from city. Secs. 1314, 9772, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the Chancery Court of Jones County; LUTHER A. SMITH, Special Chancellor.
Melvin, Melvin Melvin, Pershing B. Sullivan, F.B. Collins, Laurel, for appellants.
I. The Chancellor erred in overruling appellee's demurrer to the bill of complaint of appellants for failing to deraign title. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Dorsey v. Sullivan, 199 Miss. 602, 24 So.2d 852; Helbig v. Hooper, 200 Miss. 282, 25 So.2d 404, 406; Longmire v. Marsh, 124 Miss. 77, 86 So. 753; Long v. Stanley, 79 Miss. 298, 30 So. 823; Russell v. Town of Hickory, 116 Miss. 46, 76 So. 825; Smith v. Overstreet, 205 Miss. 488, 38 So.2d 923; Woodard v. Moss, 202 Miss. 33, 30 So.2d 420.
II. The Court erred in refusing to find for appellants at the close of all of the testimony. Bowers v. Andrews, 52 Miss. 596; Crosby Lbr. Mfg. Co. v. Elsas, 183 Miss. 107, 183 So. 499; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Dingey v. Paxton, 60 Miss. 1038; Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182, 74 So. 823; Haughton v. Sartor, 71 Miss. 357, 15 So. 71; Nelson v. Abernethy, 74 Miss. 164, 21 So. 150; Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Patterson v. Morgan, 161 Miss. 807, 138 So. 362; Smith v. Brothers, 86 Miss. 241, 38 So. 353.
III. The Court erred in overruling appellants' motion for a peremptory instruction because all of the evidence showed without question that the appellants were in open, notorious and actual possession of the property and had it enclosed by a fence at the time of the purchase of the appellee and her predecessor in title. Alexander v. Fountain, 70 So. 668; Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; Bolton v. Roebuck, 77 Miss. 710, 27 So. 630; Breland v. Parker, 150 Miss. 476, 116 So. 879; Crawford v. Brown, 215 Miss. 489, 61 So.2d 344; First Natl. Bank of Laurel v. Johnson, 177 Miss. 634, 171 So. 11; Gamble v. Black Warrior Coal Co. (Ala.), 55 So. 190; Hafter v. Strange, 65 Miss. 323, 3 So. 190; Hendrix v. Southern R.R. Co. (Ala.), 30 So. 596; Kalmia Realty Ins. Co. v. Hardy, 164 Miss. 313, 145 So. 506; Levy v. Holberg, 67 Miss. 526, 7 So. 437; Masonite Corp. v. Hill (Miss.), 53 So.2d 1; Palmer v. Fair Co., 140 Miss. 294, 105 So. 513; Parker v. Foy, 43 Miss. 262; Russell v. Scarborough, 155 Miss. 508, 124 So. 648; Stanley v. Stanley, 201 Miss. 545, 29 So.2d 641, 644.
IV. The Court erred in holding that the appellants did not have adverse possession of the property in question and that appellee is now estopped by her acts and conduct to maintain her suit. It is also the contention of appellants that the undisputed facts make a plain case for the operation of the law of estoppel. Barron v. Federal Land Bank of New Orleans, 182 Miss. 50, 180 So. 74; Brock v. Kelly, 208 Miss. 323, 44 So.2d 452; Canal-Commercial Trust Savings Bank v. Brewer, 143 Miss. 146, 108 So. 424; Casteel v. Pennington, 228 Ky. 206, 14 S.W.2d 753; Cityco Realty Co. v. Alonzo Slaysman, 160 Md. 357, 153 A. 278; City of Jackson v. Merchants Bank Trust Co., 112 Miss. 537, 73 So. 573; Clark v. City of Opelousas (La.), 84 So. 433; Day v. McCandless, 167 Miss. 832, 142 So. 486; Dermont v. Stenson (Ark.), 222 S.W. 54, 9 A.L.R. 1367; Dickson v. Green, 24 Miss. 612; Eagle Lumber Supply Co. v. De Weese, 163 Miss. 602, 135 So. 490; Ferguson v. Bobo, 54 Miss. 133; Gulf Rfg. Co. v. Travis, 201 Miss. 336, 29 So.2d 100; Houston Natl. Bank of Dothan v. Eldridge, 84 So. 430; In re Stoball's Will, 211 Miss. 15, 50 So.2d 635; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Jones v. Crawford, 201 Miss. 791, 30 So.2d 513; Money v. Ricketts, 62 Miss. 209; Myers v. Venerett, 110 Miss. 334, 70 So. 449; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414, 430; Norton v. Jones (Fla.), 90 So. 854; Peeler v. Peeler, 199 Miss. 492, 24 So.2d 338; Pippin, County Comrs. v. State ex rel. Town of Blounstown (Ala.), 74 So. 656; Reuter v. Lane, 68 N.W. 955, 34 L.R.A. 733; Roy McKetrisk v. City of California (Mo.), 96 S.W.2d 607, 160 A.L.R. 1169; Scottish-American Mtge. Co. v. Bunckley, 88 Miss. 641, 41 So. 502; Southern Homestead Assn., Inc. v. Perrin, 167 So. 135; Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297; Stokes v. American Central Ins. Co., 211 Miss. 584, 52 So.2d 358; Thomasson v. Walker, 190 S.E. 309, 110 A.L.R. 593; Wendell v. Van Ronssleraer, 54 A.L.R. 672; While, Admrx. v. Thompson (Ky.), 219 S.W. 434, 8 A.L.R. 1641; Woodliffe v. Connor, 45 Miss. 552.
V. The Court erred in sustaining the objection of defendant to the testimony in regard to the long established location of the fence and in regard to the testimony of Dr. Garraway, the former owner, admitting that the fence was the line between the two pieces of property. Archer v. Helm, 69 Miss. 730, 11 So. 3; Arrington v. Masonite Corp., 213 Miss. 817, 58 So.2d 10; Berry v. Jones, 106 Miss. 115, 63 So. 341; Brantley v. Helton (Ala.), 139 So. 283; Butler v. Vicksburg (Miss.), 17 So. 605; Comans v. Tapley, 101 Miss. 203, 57 So. 573; Gillespie v. Magruder, 92 Miss. 511, 46 So. 77; Harmon v. Dufilho (La.), 139 So. 530; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; McKay v. Lunsford (Ala.), 174 So. 620; New Orleans Ind. Canal Land Harbor Development Co. v. Janussa (La.), 123 So. 585; Ricketts v. Simmons (Miss.), 44 So.2d 537; Thomas v. Harland (Wash.), 178 P.2d 965, 170 A.L.R. 1138; Williams v. Pichard (Fla.), 7 So.2d 468; Wragg v. Cook (Ala.), 124 So. 228.
Buchanan Montgomery, Laurel, for appellee.
I. The decree of the Court overruling the demurrers of appellants to the bill of complaint was not error, but was proper and fully warranted. Cochran v. Cochran, 221 Miss. 780, 74 So.2d 841; Green v. Board, 58 Miss. 343; Sec. 402, Code 1930; Secs. 1314, 1325, Code 1942; Griffith's Miss. Chancery Practice (1950 ed.), Secs. 208, 213, 219-20, 289.
II. The complainant made out a prima facie case for the confirmation of the tax sales before she rested her case. The description of the lands set forth in the lists of lands sold to the State and to the City of Laurel, Mississippi, as well as the description in the forfeited tax land patent were sufficient, not only as tax sale descriptions, to effectively transfer title, but also as to conveyances between individuals or from the State to a municipal corporation. Albritton v. Fairley, 116 Miss. 705, 77 So. 651; Alvis v. Hicks, 150 Miss. 306, 116 So. 612; Belhaven Heights Co. v. May, 187 Miss. 101, 192 So. 6; Bowers v. Andrews, 52 Miss. 596; Butler v. Thomas, 150 Miss. 804, 116 So. 824; Gex v. Dill, 86 Miss. 20, 38 So. 193; Hanna v. Renfro, 32 Miss. 125; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Jones v. Hickson, 204 Miss. 373, 37 So.2d 625, 627; Kyle v. Rhodes, 71 Miss. 487, 491, 15 So. 40; Ladnier v. Ladnier, 75 Miss. 777, 23 So. 430; Lear v. Hendrix, 186 Miss. 289, 187 So. 746; Martin v. Smith, 140 Miss. 168, 105 So. 494; Powe v. Brantley, 210 Miss. 627, 50 So.2d 229; Reed v. Heard, 97 Miss. 743, 53 So. 400, 402; Sansing v. Thomas, 211 Miss. 727, 52 So.2d 478, 481; Seward v. Dogan, 198 Miss. 419, 21 So.2d 292; Slush v. Patterson, 201 Miss. 113, 28 So.2d 738, 29 So.2d 311; Smith v. Brothers, 86 Miss. 241, 38 So. 353; Standard Drug Co. v. Pierce, 111 Miss. 354, 71 So. 577; State v. Wilkinson, 197 Miss. 628, 20 So.2d 193; Secs. 1578, 3120, 3148-49, 3151, 3256, Code 1930; Secs. 1739, 9744, 9773, 9775, 9935-36, Code 1942; 1 C.J. 1191, Note 86; Griffith's Miss. Chancery Practice (1950 ed.), Secs. 220, 576.
III. There was no adverse possession by appellants shown which would bar appellee from maintaining her suit. There could be no adverse possession against the City of Laurel under Section 104 of the Constitution of 1890. Beauchamp v. McLauchlin, 200 Miss. 83, 25 So.2d 771; City of Ellisville v. Webb, 151 Miss. 302, 117 So. 836; Cotten v. Cotten, 203 Miss. 316, 35 So.2d 61; Crawford v. Brown, 215 Miss. 489, 61 So.2d 344; Enochs v. Miss. Tower Bldg., Inc., 210 Miss. 676, 50 So.2d 551, 558; Smith v. Smith, 211 Miss. 481, 52 So.2d 1, 6; Stern v. Parker, 200 Miss. 27, 25 So.2d 787, 27 So.2d 402; Winstead v. Winstead, 204 Miss. 787, 38 So.2d 118; Sec. 104, Constitution 1890; Secs. 709-11, Code 1942.
IV. The Trial Court did not err in holding that the appellee was not barred by adverse possession of appellants, and the Trial Court did not err in holding that the proof failed to sustain the claims of the defendants that the complainant should not be allowed to maintain her suit by reason of the alleged estoppel and laches claimed by appellants against appellee. Brown v. City of Gulfport, 213 Miss. 457, 57 So.2d 290; Crabb v. Comer, 190 Miss. 289, 200 So. 133; Crooker v. Hollingsworth, 210 Miss. 636, 46 So.2d 541, 50 So.2d 355; Dampier v. Polk, 214 Miss. 65, 58 So. 44, 49; Davis v. Butler, 128 Miss. 847, 90 So. 279, 91 So. 709; Day v. McCandless, 167 Miss. 832, 142 So. 486; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414; Smith v. Smith, supra; Waldrop v. Whittington, 213 Miss. 567, 57 So.2d 298, 300.
V. No agreement between adjoining owners as to the location of boundaries between their respective properties could make void tax sales made according to the descriptions of lots in an official plat. Brown v. Bouslog, 151 Miss. 664, 118 So. 346; Dimitry v. Jones, 149 Miss. 641, 115 So. 786; Dimitry v. Lewis, 150 Miss. 818, 117 So. 265; Sec. 3148, Code 1930; Sec. 9772, Code 1942.
This is an appeal by L.B. Melvin, Sr., and wife from a decree of the Chancery Court of Jones County, which confirmed the tax title of Mrs. Jeff D. Parker to the lots here involved, and which rejected the Melvins' claim of title to certain portions thereof.
Mrs. Parker filed her bill of complaint against the State, the Land Commissioner, and Mrs. C.R. Garraway, C.R. Garraway, Jr., John S. Garraway and Mrs. J.C. Feduccia, heirs of C.R. Garraway, deceased, and L.B. Melvin and wife, seeking to have her tax title confirmed to Lots 17 to 24, inclusive, and other lands, of the Dr. Garraway Subdivision to the City of Laurel, Mississippi as per plat thereof on file in the Chancery Clerk's office of the Second Judicial District of Jones County, Mississippi. The deraignment of title, as set out in the bill, showed the following: The land in question was patented out of the government, and the title thereto, by mesne conveyances, became vested in C.R. Garraway. After Dr. Garraway had caused these lots to be platted under date of January 25, 1929, thereafter on February 14, 1929, the plat was duly filed for record, and was recorded, in the chancery clerk's office. The lots were assessed, according to the descriptions in the plat, to Dr. C.R. Garraway both for the State and County and the City of Laurel. On September 19, 1932, the lots were sold to the State for the taxes of 1931 and to the City of Laurel for the taxes of both 1930 and 1931. On October 12, 1939, the State executed to the City of Laurel a forfeited tax patent for said lots. On January 22, 1940, Dr. Garraway executed a quitclaim deed to the City for the lots. The City, in turn, on July 26, 1941, executed a quitclaim deed to F.B. Ross for the lots, and thereafter, on August 22, 1941, F.B. Ross conveyed and warranted the lots to Mrs. Jeff D. Parker. Certified copies of the record of lands, sold for taxes both to the State and to the City of Laurel on September 19, 1932, were attached to the bill. It was also alleged that Mrs. Parker was the sole, true, legal and equitable owner of the lots, and that the complainant did not "know under what claim the defendants, L.B. Melvin and wife, Mrs. L.B. Melvin, may be claiming a portion of her lands."
The Melvins, in their answer, admitted that the land was patented out of the government, and that the title, by mesne conveyances, passed to C.R. Garraway, and that he platted the Dr. Garraway Subdivision. But they denied that the lots were lawfully assessed and sold or that title thereto passed to the State and to the City or that the subsequent conveyances thereof were valid. On the contrary, they averred that they purchased Lots 1, 2, 25, 26, 27, 28, and 29 of the Subdivision in October 1936, and that they have been in exclusive and adverse possession thereof ever since; and that they purchased Lot 3 thereof on April 8, 1941, and that they have also held that lot by adverse possession ever since. The answer also set up the following grounds of demurrer: That the bill showed no equity; the deraignment of title was not in accordance with the statute; the tax sales and subsequent conveyances were void; and that on account of laches and estoppel, the complainant can not assert her title against them.
The proof for the complainant established all of the material allegations of her bill of complaint. The original plat of the "Dr. Garraway Subdivision in the City of Laurel, Jones Co., Miss." which showed it to be "a part of the N.E. 1/4 of the N.E. 1/4 Section 31, Township 9, Range 11 West, Jones County, Miss." was offered in evidence, and a photostatic copy thereof was made a part of the record.
For the defendants, the proof showed that Dr. Garraway, at one time, lived on this property, and that his home was located on the lots which are now owned by the Melvins; that there was, at the time, an old wire fence running along the same course as the present fence, and which the Melvins claim to be the dividing line; and that, before the filing of the plat, Dr. Garraway expressed his purpose to retain for his home all of the property south and east of the fence. However, when the land was platted into the subdivision, no reference was made to the fence. Besides the plat shows an alley, 15 feet wide, between the lots here in controversy and the lots owned by the Melvins, except Lot 3, which is north of the alley. The fence crosses the east side of Lot 17 about 65.5 feet north of the alley, and, running in an irregular course, crosses the west line of Lot 17 approximately 9.5 feet north of the alley. Thereafter it follows a westerly course just north of the north line of the alley, according to the plat, though at one place, for a short distance, it practically coincides with that line. At other places, the fence meanders at times either to the north or to the south of that line. The Melvins' first deed was dated November 30, 1936. They had moved on the premises a short time previously. After they took possession, Dr. Garraway, according to L.B. Melvin, said that the fence was on the line. This evidence was objected to and excluded. The evidence leaves no doubt that the Melvins, after they moved on the premises, took possession of all land south and east of the fence, and that they have since exercised all acts of ownership over the property of which it was susceptible.
The appellants contend that their demurrer should have been sustained.
But it must be remembered that the deraignment of title, in a suit to confirm a tax title, must not be confused with the deraignment, which is required, under Section 1325, Code of 1942, in other bills to confirm and to cancel and remove clouds. The cases upon which the appellants rely arose out of confirmations, which are provided for under Section 1325, supra, and are not applicable here.
Section 1314, Code of 1942, gives a specified procedure for the confirmation of tax titles. In Section 219, Griffith's Mississippi Chancery Practice, 1950 Ed., it is said: "In a bill to confirm a tax-title the description of the premises should be the same as, or the actual equivalent of, that contained in the tax-deed, for it is well settled that a tax-deed cannot be reformed; * * *. And the bill must show that the title had passed out of the government at the date of the imposing of the tax lien for which the tax sales was made, * * *. But after the showing of the parting of title by the government it is not necessary to deraign the title anterior to the tax-deed, and the deraignment, other than the government's sale, begins with the tax-deed. Nor is it necessary to go into the details of the defendant's title, nor deraign same, for if the tax-deed be valid it cuts off all others, and if it be invalid the title or want of title in the defendants is of no concern. * * * It is therefore only necessary to allege sufficient, as to the defendants, to show that they are interested in the land sold; and a tax-title may be confirmed against a defendant in possession."
(Hn 1) The exhibit to the bill of the complete copy of the tax deed was prima facie evidence that the sale was valid and complied with every prerequisite thereto. Section 220, Griffith's Mississippi Chancery Practice, 1950 Ed.
(Hn 2) Since the bill of complaint, in all respects, followed the directives pointed out above, the demurrer was therefore properly overruled.
(Hn 3) The original forfeited tax patent No. 38,509 from the State to the City of Laurel conveyed lots 7 to 24, inclusive, Garraway Addition in Section 31, Township 9, Range 11, and other lands, all in Jones County, Mississippi. This patent was recorded October 20, 1939. The State subsequently issued a cancellation as to a part of the property conveyed by this patent. The instrument recited that: "This patent cancelled as to lots marked out in red, Void, Prior Patents No. 34,461, 34,337, 35,134, 35,174, 32,276, 36,597, 36,700 and 36,710. No refund, Cancelled by approval of the Attorney General, 1-2-40." Red lines were drawn through certain descriptions. The appellants contend, on that account, that the descriptions were void.
But Lots 7 to 24 inclusive Garraway Addition were not drawn through. Such Lots were shown by the cancellation to be in Section 31, Township 9, Range 11, in Jones County, although "Mississippi" was marked out. However, the State, County and City, and even the forty acre subdivision of Section 31, Township 9, Range 11 West appear in the description of the Dr. Garraway Subdivision.
The lists of lands sold to the State bear the caption "Record of Lands Sold for Taxes, To State ____ In the County of Jones, Second District, Mississippi" and describe the land as being in Dr. Garraway Add. in Section 31, Township 9, Range 11. The lists of lands sold to the City of Laurel bear the caption "The State of Mississippi, Jones County, City of Laurel," and the descriptions are according to the "Garraway Addition."
(Hn 4) Section 3148, Code of 1930, Section 9772, Code of 1942, provides for the assessment of lands in a city according to the plat thereof. The proof showed that there was no other Garraway subdivision or addition in the City of Laurel or in Jones County. The Garraway Addition furnished the clue to show what land was assessed and sold. Section 3151, Code 1930, Section 9775, Code 1942; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343; Albritton v. Fairley, 116 Miss. 705, 77 So. 651; Reed v. Heard, 97 Miss. 743, 53 So. 400. As to the omission of the State and County in which the lands are situated, see Butler v. Thomas Co., 150 Miss. 804, 116 So. 824; Gex v. Dill, 86 Miss. 10, 38 So. 193; Ladnier v. Ladnier, 75 Miss. 777, 23 So. 430.
(Hn 5) The omission of the abbreviation of "Dr." before the words "Garraway Addition" was not a fatal defect. Martin v. Smith, 140 Miss. 168, 105 So. 494.
In regard to appellants' claim of title by adverse possession, it is necessary to consider Section 104, Constitution of 1890, which is as follows: "Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof." See City of Ellisville v. Webb, 151 Miss. 302, 117 So. 836.
(Hn 6) The title of both the State and the City ripened before the appellants acquired their title. Regardless of the extent and quality of the adverse possession exercised over the lots after their acquisition, under the facts in this case, the appellants were not entitled to claim therefor until title passed again into private ownership. Cotten v. Cotten, 203 Miss. 316, 35 So.2d 61; Winstead v. Winstead, 204 Miss. 787, 38 So.2d 118; Smith v. Smith, 211 Miss. 481, 52 So.2d 1.
(Hn 7) The City's title was subordinate only to that of the State; and when it obtained the patent from the State, the title became perfect in the City. Hence, adverse possession could not be successfully asserted and maintained until after July 26, 1941, when the City parted with its title. Since this suit was filed prior to the expiration of ten years from that date, the appellants could not and did not acquire title by adverse possession.
(Hn 8) Appellants also contend that the appellee should not be permitted to maintain her suit by reason of estoppel and laches.
There was no substantial proof that either the State or the City induced the appellants to make improvements on these lots so as to effect an estoppel in accordance with the rule in City of Jackson v. Merchants Bank Trust Co., 112 Miss. 537, 73 So. 573. Compare Brown v. City of Gulfport, 213 Miss. 457, 57 So.2d 290.
Neither was there proof that the appellants relied upon the act, representation or silence of Mrs. Parker, and on that account, changed their situation and suffered damage therefrom. Davis v. Butler, 128 Miss. 847, 91 So. 279, 709; Day v. McCandless, 167 Miss. 832, 142 So. 486. It does not appear that they lost anything, or were placed at a disadvantage by her. Crooker v. Hollingsworth, 210 Miss. 636, 46 So.2d 541.
(Hn 9) Appellee could not be barred on the ground of laches inasmuch as she brought her suit in less than ten years from the time that the City of Laurel parted with its title. Smith v. Smith, supra; Waldrop v. Whittington, 213 Miss. 567, 57 So.2d 298.
In 1940 the Melvins tore down an old tool shed, and, in the same place, built a two room servant house. They expressly disclaimed that they were seeking relief on that account. The barn was shown to be in the alley, and was not therefore on the lots in question.
Appellants further contend that it was error to exclude the testimony of L.B. Melvin that Dr. Garraway had said that the fence was on the line.
(Hn 10) At that time, Dr. Garraway had no title to the lots. The State and the City owned the title. The lots had been assessed and sold according to the plat thereof which he had caused to be made. The descriptions were appropriate ones, and the assessments and sales were valid. Dimitry v. Jones, 149 Miss. 641, 115 So. 786. It is obvious that Dr. Garraway could not, at that time, by attempting to state that the fence was the line, deprive the State or the City of any part of their property. Hence that evidence was properly excluded.
The effort on the part of the appellants to discredit the plat of the Dr. Garraway Subdivision was not sustained by the evidence.
No reversible error appears in the record; and the decree of the lower court must be, and is, affirmed.
Affirmed.
McGehee, C.J., and Hall, Kyle and Holmes, JJ., concur.