Opinion
No. 33534.
February 13, 1939. Suggestion of Error Overruled April 30, 1939.
1. EQUITY.
Under the statute, each conveyance set out in chain of title alleged by complainant becomes an interrogatory which defendants are required to severally and fully answer (Code 1930, section 380).
2. EQUITY.
Where complainants deraigned their title from the government down to tax deed involved, and defendants' answer denied chain of title by general traverse only, complainants' chain of title was confessed (Code 1930, section 380).
3. TAXATION.
The orders and resolutions of boards of supervisors dealing with assessment rolls, notice, etc., must set forth the jurisdictional facts, but they are not required to set out the evidence constituting such facts.
4. TAXATION.
Where two years had not expired since minors attacking tax sale had become of full age, minors had the right to redeem their interest in the land (Code 1930, section 3264).
5. EQUITY.
By "adequate remedy" within rule depriving equity court of jurisdiction is meant that the remedy must be clear, complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.
6. TAXATION.
Where infants filed bill within less than two years after they had attained full age to confirm their claim of title, to recover rents and for partition and for cancellation of tax deed and conveyance by person holding such deed, infants properly resorted to equity since statutory right to redeem land did not furnish them an adequate remedy (Code 1930, section 3264).
7. LANDLORD AND TENANT.
Tenant was estopped to assert any title against owners during tenancy under them which was acquired during such tenancy.
8. LANDLORD AND TENANT.
A tenant who acquires the interest of a purchaser of land at a tax sale made before the beginning of his tenancy can only assert his claim of title against the landlord after surrendering possession to the landlord pursuant to the rental contract.
9. LANDLORD AND TENANT.
Where tenant rented land for years 1931 to 1934, inclusive, and paid agreed rent for such years except 1934, when he purchased tax title at which time he was still in possession under lease, tenant was estopped to assert title against landlord.
APPEAL from the chancery court of Issaquena county; HON. J.L. WILLIAMS, Chancellor.
L.F. Easterling and J.E. Skinner, both of Jackson, for appellants.
If complainants, by pleading and by proof, have established ownership of the land in question in themselves at the date of the tax sale to Johnnie Brown in 1930, then, under any theory of the case, this cause must be reversed and remanded to the lower court for a hearing on the question of amount necessary to redeem, or quite possibly the cause could be reversed and decision rendered in this court from the undisputed testimony in the record.
We hold it to be fundamental law that an allegation specifically and definitely charged in the bill of complaint must be taken as true unless denied under oath in defendants' answer.
Bennett v. Chaffe, 69 Miss. 279, 13 So. 731.
In 1905 the United States Congress passed what is known as the McLaurin Act for the purpose of validating titles of all parties who had purchased swamp and overflowed lands from the state of Mississippi. By the terms of this act the title to any swamp and overflowed land which had previously been rejected by the United States Government, but which had been patented by the state of Mississippi to various patentees as swamp and overflowed land, was confirmed in the respective purchasers as of the date of such sale, and by this act the United States Government conveyed to the said purchasers whatever right or title remained in the government to these lands.
Shoub v. Perkins, 111 Miss. 78, 71 So. 270.
We earnestly submit that the allegations of the bill clearly and specifically deraign title to the land out of the United States Government, and down through mesne conveyances to O.P. Simpson, through whose will complainants claimed. We say further that these allegations were not denied except by general traverse, and should have been taken as confessed, and we say, further, that even should the court hold that proof of these allegations was necessary, that the introduction of the book of original entries certified to by the State Land Commissioner, under seal, and certified copies of the field notes of the United States Surveyor General's office, which said original entry book showed the land in question granted to the state of Mississippi as swamp and overflowed land under the Act of Congress of 1850, was full and adequate proof that the title to the land in question passed from the United States Government to complainants remote vendors.
In the case of Westerfield v. Merchant, 93 Miss. 791, 47 So. 434, the court held that where property was assessed to one who subsequently died, and left three minor heirs, the property afterward selling for taxes, and the minors filing their bill to redeem that there was no necessity upon the minors to trace title any further back than the tax conveyance. That in such a case the tax conveyance is analogous to a common source of title.
Defendant, C.H. Ricketts, as complainants' tenant is estopped to assert any adverse title to complainants without first attorning to them.
Johnson v. Langston, 179 Miss. 622, 176 So. 531.
Chancery court has jurisdiction for redemption of minors' undivided interest.
Cuevas v. Cuevas, 110 So. 865, 145 Miss. 456; Barnett v. Wedgeworth, 1 Miss. 334.
The assessment roll for Issaquena county for 1928-1929 was not a valid assessment.
Section 3161, Code of 1930, Chap. 213, Laws of 1926.
The tax sale was void for the reason that the sheriff attempted to sell contiguous tracts of land by separate sales.
Sec. 3249, Code of 1930; Carter v. Moore, 183 So. 512; Nelson v. Abernathey, 74 Miss. 164, 21 So. 150; Cogburn v. Hunt, 54 Miss. 675; Yandell v. Pugh, 53 Miss. 295.
The lower court erred in excluding testimony as to signature of board of supervisors' minutes.
Stevenson v. Reed, 90 Miss. 341, 43 So. 433.
S.G. Salter, of Hazelhurst, for appellants.
The purchaser at tax sale has no conveyance and no legal right to a deed of conveyance until the period of redemption shall have expired. Any deed prior thereto is a nullity and is a cloud on the title of the owner. It seems to us that the same legal rule which applies to persons sui juris should also apply to minors unless there is a statute to the contrary. When the Legislature failed to expressly provide that the purchaser of a minor's land at tax sale should have a right to deed and possession after two years from the date of the purchase, then the presumption would naturally follow that it was and is the legislative intent to allow minors the right of possession during the full period of his right of redemption just as adults are accorded the right of possession during their full period of redemption.
Whether a tenant can purchase an outstanding title and defend without first attorning possession was long since settled by the common law. Our court, speaking through Chief Justice SMITH, has re-asserted and explained all moot questions thereabout since this case was tried in the lower court.
Johnson v. Langston, 176 So. 531.
In the above case, except that all the parties were adults, it is very similar to the case at bar. The court there held that a tenant was estopped to set up a tax title or any other title to defeat his landlord before he had attorned possession to his landlord. Following that case, we are of the opinion that the court must reverse the learned Chancellor both as to the minors and to Mrs. Simpson, the mother. The writer of the brief is of the opinion that should the court follow its latest decision on this point, then all of the other points raised are surplusage because, in this case, right on the threshold of his defense Ricketts is met with the proposition that he has no title which he could assert in a court of equity or law to defeat us or our legal right of possession, and having no title in himself which he could legally assert, he is stripped of all defense on all other questions.
Clements Clements, of Rolling Fork, for appellees.
It is the unquestionable law that the appellants must rely on the strength of their own title and cannot rely on the defects or weakness of the title of the appellees.
Goff v. Avent, 122 Miss. 86; Chiles v. Gallagher, 67 Miss. 413; Wilkerson v. Hiller, 70 Miss. 678; Long v. Stanley, 79 Miss. 298.
Appellant's chain of title is no stronger than its weakest link, regardless of what the true facts may be regarding the title of this particular land as passing from the United States Government to the state of Mississippi under the Swamp Land Act of September 1850. There is absolutely no proof offered in this case and no evidence of any character to show that the state of Mississippi ever received a patent or a deed from the Government to this land under the Act; or that the second section of the Act requiring the selection and designation of the lands before title passed to that particular land, to be approved by the Surveyor General and the Secretary of Interior had ever been complied with. The burden of proof in this case was upon the appellants, and they have failed to meet it by showing that the title came out of the United States Government under the Swamp Land Act of September 28, 1850.
Buena Vista County v. Iowa Falls, etc., R.R. Co., 112 U.S. 165, 28 L.Ed. 680.
So far as the evidence in this case is concerned, the state of Mississippi only got an inchoate title by virtue of the grant itself, and the jurisdiction over and the control over the lands is still in the agencies of the United States Government, over which the courts have no control, nor can they control, and the Statute of Limitation by adverse possession did not and does not run against the United States Government. Therefore, if we are correct in this, the appellants have totally failed to show their right to relief, because they have never shown themselves to be the owners of the land in question in this case.
Brown v. Hitchcock, 173 U.S. 473, 43 L.Ed. 772; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 41 L.Ed. 621; Willoughby v. Caston, 111 Miss. 688, 72 So. 129; Carr v. Moore, 93 N.W. 52, 119 Iowa 152; Little v. Williams, 231 U.S. 335, 58 L.Ed. 256.
It is our contention that regardless of whether the state of Mississippi has identified the lands or made the proper selection which was approved by the Secretary of Interior, or other competent federal authority, or whether it has received a patent to the land, makes no difference, for the reason that this record nowhere shows any evidence of that fact, and the only attempt was to show that it is now subject to overflow.
Conners v. Meservey, 76 Iowa 691, 39 N.W. 388; Young v. Hanson, 95 Iowa 717, 64 N.W. 654; Martin v. Marks, 97 U.S. 345, 24 L.Ed. 940; Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039; Irwin v. San Francisco Savings Union, 136 U.S. 578, 34 L.Ed. 540; Funston v. Metcalf, 40 Miss. 504; Dowd v. Louisville, N.O. T. Ry. Co., 68 Miss. 159.
Your Honors will observe that by section 3 of this McLaurin Act, the Act does not apply to the countries within the Third Congressional district, naming them and including the county of Issaquena, in which the land in question in this case is located. This being true, this land must be dealt with as the law stood prior to the passage of the so-called McLaurin Act.
The court will take judicial knowledge of the fact that under the Act of Congress, and the construction of that act by the United States Supreme Court, that under the Swamp Land Act alone the state of Mississippi got nothing but an inchoate title, and that the fee simple title did not pass into the state until section 2 of the Act was complied with, therefore, when the appellants conclude that it was ceded to the state by that Act, does not make it true, and under all the authorities that we have been able to find in this state it has been continuously held that the complainants in a bill must not only allege in the bill that the title had passed out of the United States Government, but they must prove it, this appellants have not done.
Gilchrist-Fordney Co. v. Keys, 113 Miss. 742; Lyon Co. v. Ratliff, 129 Miss. 353; Acoff v. Roman, 172 Miss. 141, 159 So. 555; Ables v. Forrester, 181 So. 913; Mortimer v. Curle, 183 So. 485; Long v. Stanley, 79 Miss. 298.
A tenant or one in possession of land, claiming title thereto, the title to which is in the United States Government, may dispute his landlord's title by showing that fact; the ordinary rule which forbids the tenant disputing his landlord's title having no application in such case because violative of public policy.
Ellis v. Sutton, 126 Miss. 102, 99 So. 519.
Therefore, until the appellants show that this title is not in the United States Government, Ricketts, whom they claim to be a tenant, had a perfect right, whether a tenant or not, to dispute their title.
We feel like counsel has overlooked the controlling fact as to the effect of this question of tenancy as to the rights of Ricketts under the evidence in this case, because: (a) Ricketts was not a tenant of appellants at the time the land was sold for taxes. (b) Whatever tenancy there might have existed between appellants and Ricketts in 1931 and 1932 was terminated on the 7th day of April 1932, by operation of law. (c) And especially by eviction of Johnnie Brown, the purchaser at that sale, as alleged in the bill, and as shown by the evidence.
Dugan v. Chapman, 75 Miss. 446; Secs. 3264 and 3273, Code of 1930; Moody v. Hoskins, 64 Miss. 407.
If Ricketts was not a tenant at the time of the sale in 1930 then he had a right to purchase the land at the time he did from Johnnie Brown.
Walker v. Harrison, 75 Miss. 666.
It has been consistently held by the Mississippi Supreme Court that a tenant has a right to show that the landlord's title has been extinguished or expired since the tenancy commenced.
Wolf v. Johnson, 30 Miss. 513; Rhyne v. Guevara, 67 Miss. 139; Melchoir v. Casey, 173 Miss. 67; Baird v. Stubbins, 58 N.D. 351, 65 A.L.R. 1012.
If the appellants permitted the land to be sold for taxes and failed to redeem before the expiration of the two year period, and permitted the title and the right of possession, subject only to upset by redemption by the minors, as provided by the statute, then they forfeited everything that they might have had by right or claim under any lease contract shown to have been made with Ricketts, in this case. They were entitled to rent up to the 7th day of April, 1932, thereafter there was no relationship of landlord and tenant existing between them. Had they exercised the right of redemption at that time, the contract with Ricketts would have continued to run uninterrupted. Not having elected to do so, if the doctrine of estoppel will work anywhere, it seems to us, it should be applied to appellants and not to Ricketts, in this case.
Johnson v. Riddle, 240 U.S. 478, 60 L.Ed. 758; Melchoir v. Casey, 173 Miss. 67.
It is our contention that the chancery court has no jurisdiction and hasn't had, since 1928, over the redemption of land.
Section 3264, Code of 1930.
The assessment roll for Issaquena county for the years 1928 and 1929 was a valid assessment.
Mullins v. Shaw, 77 Miss. 900; Pettibone v. Wells, 179 So. 339; Martin v. Board of Supervisors, 178 So. 315.
We respectfully submit that this board in its orders of July and August and September, sufficiently set out the necessary jurisdictional facts to proceed with the equalization and final approval of the assessment rolls as filed; that there was a substantial compliance with the law, and that appellants will not be heard to say that such proceedings were void.
The court will note that in the notice as set out in the order of the Board of Supervisors at its September meeting, duly warned the taxpayers to file their objections in writing, with the clerk of the board, on or before the first Monday of September, 1928, at his office in the town of Mayersville, said county, which is exactly the wording of the notice approved by this court in the Pettibone case, and in the case of Rawlings v. Ladner, 165 So. 427.
The tax sale was not void by reason of the method of the sale followed by the sheriff.
Section 1578, Code of 1930; Lewis v. Griffin, 153 Miss. 578, 60 So. 651.
The lower court correctly excluded the testimony of J.S. Myers as to the signature of the President of the Board of Supervisors minutes.
Mullins v. Shaw, 77 Miss. 900; Shirley v. Ferns, 33 Miss. 667; Mandeville v. Stockett, 28 Miss. 398.
The levy of the board of supervisors of taxes for the year 1929 was valid.
Chap. 253, Laws of 1920; Colson v. Harris, 43 Miss. 737; Rawlings v. Ladner, 165 So. 427.
Appellants, Mrs. Ernestine Simpson, and her three daughters, Mrs. Cade, Mrs. Montgomery, and Miss Katherine Simpson, filed their bill in the chancery court of Issaquena County against appellees, C.H. Ricketts and Johnnie Brown, to confirm their claim of title to 165.27 acres of land in that county (described in the bill), alleging that each had a one-fourth undivided interest therein, and to recover rents for its use, and for partition, and to that end a tax deed to appellee Brown to the land, and a conveyance by him to appellee Ricketts be cancelled. The cause was heard on bill, answer and proofs, resulting in a decree dismissing the bill, from which decree appellants prosecute this appeal.
The questions involved are: (1) Whether appellants' deraignment of title in their bill from the government down to the tax deed was established. (2) Whether the tax sale under which appellee Ricketts claimed title was void. (3) Whether the chancery court was without jurisdiction because appellants had a plain and adequate remedy provided by statute. (4) Whether appellee Ricketts, at the time of his purchase from appellee Brown, on account of his tenancy of the land, under appellants, was estopped from acquiring title. We will consider these questions in the order stated.
That appellants deraigned their title from the government down to the tax deed is not questioned; the contention is that they were put upon proof of their title by the answer, and failed therein. The answer denied appellants' chain of title by general traverse only. It did not set out any specific defect in the title. Sec. 380 of the Code of 1930 is in this language: "The defendant shall answer fully all the allegations of the bill without being specially interrogated. All matters of fact averred in the bill and not denied by the answer otherwise than by the general traverse, may be taken at the hearing as admitted."
Under the statute each conveyance set out in the chain of title became an interrogatory to appellees, which they were required to severally and fully answer. Miss. Chancery Practice (Griffith), secs. 348 and 349. They failed to do so. Appellants' chain of title therefore was confessed.
We are of the opinion that the contention that the tax sale was void because the assessment under which it was made was void has not sufficient merit to call for discussion, except to state that although the orders and resolutions of boards of supervisors dealing with assessment rolls, notice, etc., must set forth the jurisdictional facts, they are not required to set out the evidence constituting such facts. Pettibone v. Wells, 181 Miss. 425, 179 So. 336; Martin v. Board of Supervisors, 181 Miss. 363, 178 So. 315; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427. Those involved here complied with that requirement. Nor is there any merit in the contention that in making the sale the sheriff failed to comply with Sec. 3249 of the Code of 1930.
Going now to the question of the jurisdiction of the chancery court: Sec. 3264 of the Code follows: "The owner, or any person for him with his consent, or any person interested in the land sold for taxes, may redeem the same, or any part of it, where it is separable by legal subdivisions of not less than forty acres, or any undivided interest in it, at any time within two years after the day of sale, by paying to the chancery clerk, regardless of the amount of the purchaser's bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale, and twenty-five per centum on the amount of taxes for which it was sold and all costs, and all taxes and costs that have accrued on the land since the sale, and, in the case of land sold to individuals, an additional five per centum on the whole amount of the redemption money which said five per centum shall be paid to the purchaser; saving to infants and persons of unsound mind whose land may be sold for taxes, the right to redeem the same within two years after attaining full age or being restored to sanity, from the state or any purchaser thereof, on the terms herein prescribed, and on their paying the value of any permanent improvements on the land made after the expiration of two years from the date of the sale of the lands for taxes. Upon such payment to the chancery clerk as hereinabove provided, he shall execute to the person redeeming the land a release of all claim or title of the state or purchaser to such land, which said release shall be attested by the seal of the chancery clerk and shall be entitled to be recorded without acknowledgment, as deeds are recorded; and which release when so executed and attested shall operate as a quit claim on the part of the state or purchaser of any right or title under said tax sale."
The land was sold for taxes in April, 1930, and purchased by appellee Brown. In 1934, he conveyed it to appellee Ricketts. At the time of the tax sale, the mother, Mrs. Simpson, was an adult and had been for some time. The daughters, the other three appellants, were minors, and at the time of the filing of the bill in this cause in July, 1937, two years had not expired since any of them had attained full age. They, therefore, had the right to redeem their interest in the land. The question is whether in doing so, they were confined to the statutory method laid down by section 3264, or had the right to resort to the chancery court, which resolves itself into the question whether or not under the facts of this particular case the statute furnishes an adequate remedy. We are of the opinion that question must be answered in the negative. Cuevas v. Cuevas, 145 Miss. 456, 110 So. 865; Swalm v. Sauls, 141 Miss. 515, 106 So. 775. The addition to the latter part of section 3264, made by the Legislature since those decisions, has no material bearing on the question of the jurisdiction of chancery. We have here involved the questions above set out, and as a part thereof the questions of improvements and rents and partition, and there could be involved in such a case the question when the person or persons seeking to redeem, who were minors when the tax sale was made, reached their majority. By adequate remedy is meant that the remedy must "be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." 21 C.J. 50, section 27.
Appellee Ricketts was estopped to assert any title against appellants during his tenancy under them, which was acquired during such tenancy. The facts out of which this question arises are as follows: As stated, the tax sale took place in April, 1930, therefore the two-year period for redemption expired in April, 1932. The evidence showed that appellants leased the land to appellee Ricketts for the years 1931 to 1934, inclusive; that he thereupon went into the possession and use of it, and paid the agreed rent for all those years, except 1934, and further that in 1934 when he purchased from appellee Brown he was still in possession under that lease. A tenant who acquires the interest of a purchaser of land at a tax sale made before the beginning of his tenancy can only assert his claim of title against the landlord after surrendering possession to the landlord pursuant to the rental contract. Johnson v. Langston, 179 Miss. 622, 176 So. 531. We are of the opinion that decision controls as to the rights of appellant Mrs. Simpson and appellee Ricketts as between each other.
It results from what has been said that the decree appealed from is reversed and the cause remanded to be proceeded with in accordance with this opinion.
Reversed and remanded.