Summary
In Presley v. Haynes, 182 Miss. 44, 180 So. 71 (1938), Haynes conveyed certain land to Presley who in turn conveyed to a third party.
Summary of this case from Monroe County Bd. of Educ. v. RyeOpinion
No. 33149.
April 4, 1938.
1. COVENANTS.
Where bank executed warranty deed, grantee thereunder executed second warranty deed, grantee under second deed discovered that forfeited tax land patents to a predecessor of bank were void under statute, and bank and its predecessors had open, peaceable, and continuous possession for over 45 years, exercising ordinary acts of ownership and paying taxes, grantee under second deed could not recover from bank for expense of procuring patent by way of quitclaim from the state, since conclusive presumption obtained that bank had perfect title (Rev. Code 1880, section 562).
2. ADVERSE POSSESSION.
Where continuous occupancy, possession, and use of land has been openly held for more than 45 years under void forfeited tax land patents, the state receiving taxes from possessor, possessor's title will be deemed as perfect as if land had been held against private owner for statutory 10-year period (Code 1930, section 2287).
3. COVENANTS.
The covenant of warranty does not extend to claims which possess no legal foundation, whether of record or not, and hence warranty of title to land does not covenant for perfect record title, but only for fee-simple title, or one free from actual, as distinguished from technical, defects.
4. COVENANTS.
A warrantee cannot recover of warrantor the expense of making title good on record when it was already actually good by readily available and undisputed facts in pais.
APPEAL from chancery court of Coahoma County; HON. R.E. JACKSON, Chancellor.
Pat D. Holcomb, of Clarksdale, for appellant.
The bill of complaint states a cause of action. The patents marked Exhibits "D" and "E" to the bill of complaint, were void and passed no title to J.B. and G.W. Peden; for the reason that the deeds do not contain the essential endorsements required by Section 562 of the Code of 1880 to give them validity, and therefore, of course, the state did not part with its title.
Burroughs Land Co. v. Murphy, 131 Miss. 526.
The warranty deed executed by the First Joint Stock Land Bank of New Orleans to C.R. Swindle, marked Exhibit "A," passed to appellant under and by virtue of the warranty deed of C.R. Swindle to appellant, marked Exhibit "B," to the bill of complaint, and that the word "warrant" under our statute contains all the five covenants of the common law including an assurance of a perfect title is settled.
Sec. 2122, Code of 1930; Allen v. Caffee, 85 Miss. 766.
It is well settled by the case of Brooks v. Black, 68 Miss. 161, that the covenant of warranty runs with the land and passes to all subsequent owners claiming in the chain of title. The purchaser of land gets by operation of law not only the land but also the covenant of the first vendor, and that as well where the covenant is by its words to the vendee only, as where it is with him and his assigns. Therefore, in this particular case, the appellant herein may recover of his remote vendor the appellee, First Joint Stock Land Bank the expense incurred in perfecting his title.
Brooks v. Black, 68 Miss. 161.
Covenants of warranty in a deed are broken when made and the right of action accrues immediately.
Cranford v. State ex rel. Knox, 131 So. 638.
Where a grantee is compelled to acquire an outstanding paramount title, he may sue for a technical breach of the covenant of warranty although there has been no eviction.
Coopwood v. McCandless, 99 Miss. 364; Green v. Irving, 54 Miss. 455, 28 Am. Rep. 360.
Adverse possession, of course, does not make a marketable title in Mississippi where the state is the holder of the legal title.
Sec 104, Constitution of 1890; Green v. Irvin, 54 Miss. 462; Penick v. Floyd-Willis Cotton Co., 119 Miss. 828.
The title was undoubtedly defective, the State of Mississippi holding the naked title and the plaintiff herein could not have enforced the specific performance of the contract of purchase of the land because the vendor could not show a clear title, but merely one that was in fact defective. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title.
Union Planters Bank Trust Co. v. Corley, 161 Miss. 282.
Therefore, since the complainant could not force the specific performance of the contract, he had only one alternative and that was to acquire the outstanding paramount title held by the state and to sue the remote vendor for the breach of the covenant of warranty.
Coopwood v. McCandless, 99 Miss. 364.
And the measure of damages for a breach of warranty is the amount which the vendee has been forced to spend to perfect his title, not in excess of the amount of the purchase price and interest.
Burroughs Land Co. v. Murphy, 131 Miss. 526; Brooks v. Black, 68 Miss. 161.
Brewer Montgomery, of Clarksdale, for appellee.
There is no allegation in the bill of complaint that a part of the lands was sold for taxes on March 7, 1881, and no allegation that the other part of the lands was sold for taxes on the 6th day of March, 1883. The mere recitals in the patents of 1887 are not sufficient. They are not allegations. The appellant must allege the facts by which the state got title, if any, to the lands in controversy.
Griffith's Chancery Practice, sec. 82; Sec. 3, Chapter 174, Laws of 1936.
It is not alleged in the bill of complaint that any list of lands on file in Quitman County, Mississippi, or in the office of the land commissioner showed that the state claimed to be the owner of the lands described in the bill of complaint. It is not charged in the bill of complaint that there is or was any record of any claim by the State of Mississippi to the lands in question, or that any claim was being asserted to the lands. At no place in the bill of complaint does the appellant allege that the state or anyone else has ever made or is making any claim whatsoever to any interest or title in the lands herein involved. Appellant does not allege in the bill of complaint that the two patents which he is asking the court to declare void are necessary links in the chain of title.
It is submitted that the so-called tax land patent shows from its face that the State of Mississippi was not claiming any right, title or interest in and to the N 1/2 of the NW 1/4 of Section 28, and the S 1/2 of the SW 1/4 of Section 21, in Township 27, Range 2 West, Quitman County, Mississippi, and that said instrument is but a disclaimer by the State of any right, title or interest in said lands.
In the second paragraph of Section 3, Chapter 173 of the Mississippi Laws of 1936, it is provided that the land commissioner, with the approval of the attorney general, shall strike from the land book in his office all the lands which by reason of insufficient description or other causes in the opinion of the attorney general, are not the property of the state.
In the forfeited tax land patent the named consideration is $2.50, referred to therein as a patent fee, there being no consideration whatsoever recited for the purchase price of the 160 acres of land described in the patent.
A very significant fact is that the attorney general approved the forfeited tax land patent, which approval, we assume, would not have been given had the State of Mississippi held or claimed title to the lands in question.
Leavenworth Son, Inc. v. Hunter, 150 Miss. 268.
The law presumes a grant by the state of its title.
Although, as a rule, title to land owned by the United States or by a state cannot be acquired by adverse possession, a grant from the sovereign state or government may be presumed from long-continued, peaceable possession of real property, accompanied by the usual acts and claim of ownership, or, as otherwise expressed, a presumption is raised, in such a case, that the state or government had parted with the title to someone and that the adverse claimant had acquired that title; and this presumption prevails even as against the state or government itself, unless there is something in the records or proof to show continuous title in the state.
2 C.J., section 231, page 876; Leavenworth Son, Inc., v. Hunter, 150 Miss. 268; Caruth v. Gillespie, 109 Miss. 679, 68 So. 927.
In his attachment in chancery, appellant alleged that the principal defendant therein, First Joint Stock Land Bank of New Orleans, had conveyed the lands here involved to C.R. Swindle by warranty deed on December 26, 1933, and that by like warranty deed said Swindle had conveyed the lands to appellant on January 12, 1934; that on April 29, 1937, appellant made a written contract to convey the lands by warranty deed to Henry T. Allen, and that in accordance with the said contract, abstracts of title were delivered to the attorneys of Allen, who, upon examination thereof, found that the two forfeited tax land patents from the state to a predecessor in title of the land bank, executed in 1887, were void for failure to comply with section 562, Code 1880; that appellant had been put to large expense in procuring a patent by way of quitclaim from the state in order to cure said apparent defect in title, and decree was demanded against the land bank, under its warranty, for said expense.
Under Burroughs Land Co. v. Murphy, 131 Miss. 526, 95 So. 515, and McLemore v. Anderson, 92 Miss. 42, 43 So. 878, 47 So. 801, the two patents were void; but this feature disappears as being of any importance in the instant case, because, under the agreed statement of the facts, as set out in the chancellor's decree, the bank and its predecessors in title had been in the open, peaceable, and continuous possession of the land for more than 45 years prior to the filing of the bill of complaint herein, exercising all ordinary acts of ownership over said land, including the clearing, cultivation, and improvement thereof and paying the taxes assessed thereon. Under such circumstances, and because of such a long lapse of years, it will be presumed that the state has long ago conveyed to the said occupants all its title to the land by a valid patent or patents, other than the invalid patents to which appellant here points. In Caruth v. Gillespie, 109 Miss. 679, 68 So. 927, the presumption against the state of perfect title in the occupant was sustained upon proof of 30 years of such occupancy. This holding was reaffirmed in Leavenworth Son v. Hunter, 150 Miss. 245, 116 So. 593.
When continuous occupancy, possession, and use of land has been openly held for such a great length of time as shown in this case, the state receiving taxes assessed thereon as if privately owned, the presumption above mentioned becomes absolute, and the title will be deemed as perfect as if held against private owners for the 10 years prescribed by the adverse possession statute, section 2287, Code 1930, which, under its express terms, gives full and complete title. Since then, the land bank had full and complete title under the admitted facts, it follows that there had been no breach of its warranty.
The covenant of warranty does not extend to claims which possess no legal foundation, 2 Devlin on Real Estate, 3rd Ed., p. 1741, whether of record or not of record, and in consequence a warranty of title to land does not covenant for a perfect record title but only for an actual fee-simple title, that is to say, one free of actual, as distinguished from technical, defects. Hence, a warrantee cannot recover of the warrantor the expense of making the title good of record when it was already actually good by readily available and undisputed facts in pais. Thorne v. Clark, 112 Iowa 548, 84 N.W. 701, 84 Am. St. Rep. 356, and authorities therein cited. A different case might be presented where the facts in pais are unavailable or are involved in doubt or dispute, as was the situation in Union Planters' Bank v. Corley, 161 Miss. 282, 132 So. 78, 133 So. 232; but here the facts are so free of all this that they were agreed upon, as hereinabove stated.
Affirmed.