Penick v. Floyd Willis Cotton Co.

delivered the opinion of the court.

Appellee, Floyd Willis Cotton Company, exhibited its bill of complaint in the chancery court of Yazoo county against appellants to confirm its title to the North half of Northwest quarter of Northwest quarter, section 6, township 12, range 3 West. A companion suit was filed by appellees against T. H. Campbell et al. as to the South half of said forty acres. It is agreed that the last-named suit is to be submitted upon briefs filed in this cause, No. 20623 on the docket of this court.

Complainant deraigned title as follows: United States to the state of Mississippi, under the act of 1850 donating swamp and overflowed lands; the state of Mississippi to J. P. McCauley, by patent October 30, 1909; and thereafter deeds from McCauley to J. D. King, King to Ployd Willis, and Floyd Willis to appellee company. In pursuance to Act Sept. 28, 1850 (9 Stat. 519, chapter 84 [U. S. Comp. St. sections 4958-4960]), a patent was *842issued from the United States government January 17, 1855. In the bill of complaint it is averred that the defendants were claiming under a tax deed executed by P. P. Hilliard, tax collector, to the hoard of levee commissioners, May 14, 1872, for the taxes for 1871. The answer of the defendants denied the material allegations of the hill, and denied the allegation of the hill that said tax sale was invalid, and expressly claimed title by virtue of said tax deed. The defendants further pleaded title by adverse possession for ten years, pleaded the provisions of the act of 1888 entitled “An act to quiet and settle the titles to certain lands in the Yazoo Delta,” etc. (Laws 1888, chapter 23), and twelve months’ occupancy thereunder, and pleaded the three year statute of limitation (section 3095, Code of 1906; section 2459, Hemingway’s Code).

The cause was submitted to the chancellor upon the pleadings and an agreed statement of facts. The agreed statement sets forth the chain of title under which the defendants claim. This chain of title, beginning with the tax deed above mentioned to the hoard of levee commissioners, shows conveyances from Gwin and Hemingway, commissioners, to Mercer and Powell, and by mesne conveyances from Mercer and Powell to the defendant John Penick. The agreed statement shows that the defendants claim title to lands other than the forty acres embraced in those suits and in the deed from J. W. Mercer and George M. Powell to Taylor and Greer, executed August, 1880. Kit Greer, one of the claimants, erected a house on a part of the land conveyed by said deed, and moved into the said house and cleared and put into cultivation about twenty acres of land, and that his occupancy was continued by subsequent grantees in the said chain of title. But the agreed statement furthermore expressly stipulates:

“That the particular land in controversy in the above-styled suits, to wit, the Northwest quarter of the Northwest quarter of section 6, township 12, range 3 *843west, is wild and uncultivated land, and has never been in cultivation, and that no improvements have ever been put thereon, and that the same has never been fenced or in any manner inclosed; that the cultivation of land and all improvements hereinbefore referred to have not been.on any part of the particular land in controversy in said suits, but have been on other parts of tbe tract of land described in the conveyance by Grwin and Hemingway, commissioners, to J. W. Mercer and George M. Powell, aforesaid, and through whom the defendants claim title.”

The chancellor, on final hearing, confirmed appellee’s title and canceled the claim and alleged title of the defendants. Appellants on this appeal rely upon the various statutes of limitations. They rely upon the act of 1888, section 2173, Revised Code of 1871 (a statute which was not pleaded eo nomine in the court below), section 2693, Code of 1880, and the provisions of the present Code. It is particularly contended that, if none of these statutes of limitations applied prior to October 30, 1909, the date of the patent from the state of Mississippi to McCauley, the statutes certainly began to run when the state parted with its title and the lands became the subject to private ownership. It is contended that the agreed statement of facts shows that the state parted with its title approximately eight years before the filing of this suit, and that “surely tbe statute of limitation commenced running against Mc-Cauley and, his vendees from the date the state parted with its title,” and, “if so, the one-year statute of limitation of the act of 1888 and the various statutes of limitation applicable to sales under decrees of the chancery court bar tbe right of recovery on behalf of appellee.”

It would seem that any further declaration from this court that swamp and overflowed lands belonging to the state were never the subject of taxation while owned by the state would be unnecessary. Dees v. Kingman, 80 *844So. 528, and authorities there cited. The agreed statement and record evidence, affirmatively show that the lands in dispute were swamp and overflowed lands, and belonged to the state at the time of the attempted sale by Hilliard, tax collector, to the board of levee commissioners in 1872. A certificate from the state land commissioner is in evidence, reciting that the lands in controversy were never patented by the state to any one prior to October 30, 1909, when a patent was issued to McCauley. It conclusively appears, then, that at the time of the alleged tax sale the title was in the state, and that “all attempt to subject it to taxation is in fraud or in violation of law.” Hoskins v. Railroad Co., 78 Miss. 768, 29 So. 518, 84 Am. St. Rep. 644. Since January 24, 1877, statutes of limitation do not run against the state. Even, therefore, conceding that appellants had possession, the various acts of possession relied upon and most of the statutes pleaded in aid of the tax title were in force at a time when the state owned the lands, and at a time when the state’s title would be unaffected by any of these statutes, or any conduct of the parties in taking possession of or exercising dominion over the premises.

But is is contended that certainly these statutes of limitation began to run when the state parted with its title, and this is the main point to which this opinion is addressed. Learned counsel for appellants do not bring to our attention any case holding that any of the statutes of limitation under the Code of 1871 or the Code of 1880 could be invoked in aid of a tax title made many years before the state ever parted with its title and long after these old statutes have been superseded by the Code of 1906. On the contrary the case of Dees v. Kingman, supra, is against counsel’s contention. We see no occasion to doubt the conclusions we reached in this recent case of Dees v. Kingman. In fact, it finds support in the prior cases of Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660, and authorities there dis*845cussed. The only statute which could possibly have any application would be section 3095, Code of 1906, the one in force and effect in the year 1909, when the state parted with its title. It was expressly ruled in Leavenworth v. Reeves that a tax deed to lands owned by the state is absolutely .void, and cannot be aided or cured by section 3095 of the present Code. Our court, by Smith, C. J., there said:

“Section 3095 has no application, for the reason that, as the land was owned by the state in 1896, it was not then subject to taxation. The defect in this tax deed does not arise by reason of the defective execution by the state’s administrative officers of a power to assess and sell for taxes, but by reason of the fact that the legislature had not conferred, or attempted to confer, any such power upon them at all, and to such a defect this statute has no application. The case of Hoskins v. Railroad Co., 78 Miss. 771, 29 So. 518, 84 Am. St. Eep. 644, is conclusive of this proposition, and that case was not overruled by, and is not in conflict with, the case of Hammer v. Lumber Co., 100 Miss. 349, as was expressly stated in the opinion rendered therein at page 434, 56 So. 466.”

To yield to counsel’s contention in the case at bar would necessitate overruling Leavenworth v. Reeves. Our court in .the last-named case followed Hoskins v. Railroad Co., supra, and both cases, we think, announce a wholesome rule to live by. They are not in conflict with Hamner v. Lumber Co., 100 Miss. 349, 56 So. 466. We refer, also, to the case of Willoughby v. Caston, 111 Miss. 688, 72 So. 129, on the general proposition that the statute of limitations conferring title by adverse possession for ten years has no application “until the sovereign power has conveyed the title by proper patent.” Admittedly in the case at bar there can be no title 'by ten years’ adverse possession. ' The lands were patented October 30, 1909, and this suit was filed January 13, 1917. Certainly none of the statutes of limita*846tion in the Code of 1871 or the Code 1880 could apply to lands patented by the state in 1909, long after these statutes served their day and yielded to the latter enactments contained in the Code of 1906. Upon the authorities mentioned the decree of the learned chancellor must be affirmed.

The same order may be entered in the companion case of T. H. Campbell et al. v. Floyd Willis Cotton Co. (No. 20725), 81 So. 453.

Affirmed.