R. Leon Bass, of Belzoni, for appellant.
Government lands are not taxable, and there is no sufficient showing of a valid tax deed until it has been shown that the lands become taxable by becoming the subject of private ownership.
Acoff et al. v. Roman, 172 Miss. 141 , 159 So. 555 .
There was an utter failure to show that the title had passed out of the United States Government, and therefore the failure to show a valid tax sale.
Lyon Co. et al. v. Ratliff, 129 Miss. 342 , 92 So. 229.
In all such cases, as in an action of ejectment, the complainant must show title in himself from the government
down, or he must show title by adverse possession, actual or constructive, for the statutory period, or he must show title from the defendant, or that both derive their claim from a common source, and that his is the better title from that source.
Long v. Stanley et al., 79 Miss. 298 , 30 So. 823; Griffith's Mississippi Chancery Practice, Sec. 216.
Appellee and his grantor have been in possession of this land for more than three years under this tax deed, and consequently appellee's title has been perfected.
Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349 , 56 So. 466; Smith et al. v. Leavenworth, 101 Miss. 238 , 57 So. 803.
The title of the defendant to the land claimed under the tax sale has been perfected by the lapse of the statutory period, without regard to any defect of power. The title becomes perfect by lapse of time, whatever its original infirmity may have been.
Carlisle v. Yoder, 69 Miss. 384 , 12 So. 255.
If the trustee transfers the trust property to a third person with the consent of the beneficiary who is not under an incapacity, the trust is terminated and the trustee is under no liability for making the transfer.
Restatement of the Law, Trusts, Chap. 10, Sec. 342 (b), p. 1053.
Section 3 of Chapter 196, Laws of 1934, is more than a mere statute limiting the time within which to bring an action to cancel the title of the State to land sold to it for taxes (cf. Russell Investment Corporation v. Russell, 182 Miss. 385 , 178 So. 815 ), for, on the expiration of the time limit in Section 1 of the Chapter, it "extinguishes all the right in and to such land, of any and all persons whatsoever."
Lee v. Smith, 189 Miss. 636 , 198 So. 296 .
Whatever rights appellees had in the land in question were totally extinguished by the tax sale to the State and the elapse of the period of redemption, and what the State afterwards did with its admittedly complete and
valid title is of no concern to appellees from a legal standpoint. If fraud was perpetrated against the State, — and for the purpose of the present case and for that purpose only we will concede that there was, — that point can be raised only by the State.
Reliance Investment Co. v. Johnson, 188 Miss. 227 , 194 So. 749.
The facts upon which the plaintiff's right to sue is based, and upon which the defendant's duty has arisen, coupled with the facts which constitute the latter's wrong, made up the cause of action.
Cox et al. v. American Freehold Land Mortgage Co. of London, 88 Miss. 88 , 40 So. 739; Hutchinson v. Ainsworth, 73 Cal. 452 , 15 P. 82, 2 Am. St. Rep. 823.
A warranty deed without a special covenant to that effect does not warrant against future imposition of taxes against property sold.
Robertson v. Singleton, 156 Miss. 220 , 125 So. 421 .
The warranty certainly did not guarantee that there would be no taxation in the future, nor the character and extent of it; that is one of the things that runs as an incident of government. The taxing authorities have the right for the general purposes of the government to levy taxes against property, and the warranty does not apply to any future incumbrance not specially warranted against.
Robertson v. Singleton, supra.
One who has bought in land under a deed of trust, being entitled to the income, is bound to pay the taxes.
Sevier v. Minnis, 71 Miss. 473 , 15 So. 234.
Mr. Vestal, by his purchase under the deed of trust, became entitled to the income arising from the estate; and it was his duty, while in the enjoyment of the estate, to pay the taxes, and he could not free himself from this obligation by relinquishing to another the land, or permitting it to be sold for taxes and bought by another.
Sevier v. Minnis, supra.
The purchasers at the sale under the decree to enforce that mortgage acquired the title of the land in the exact position it was in at the date of the mortgage, unaffected by any charge upon it by the subsequent act of the mortgagors.
Bainbridge v. Woodburn, 52 Miss. 95 .
The date of the execution of the mortgage fixes the rights of the foreclosure purchaser, his title relating thereto, and not to the time of completion of the foreclosure proceedings.
41 C.J., Mortgages, Sec. 1112.
In accordance with the general rule that a purchaser at a judicial sale takes the property subject to other valid liens resting thereon unless expressly stipulated otherwise, it is held that a purchaser of property at a mortgage foreclosure sale takes the property subject to tax liens.
37 Am. Jur., Mortgages, Sec. 779.
Accordingly, where neither the mortgagor nor the mortgagee pays the taxes extended against mortgaged property, and suit is brought to foreclose the mortgage, without reference to the taxes, and no order is made by the court to pay the taxes out of the proceeds of the sale, the sale is made subject to the unpaid taxes. The rule of caveat emptor applies.
37 Am. Jur., Mortgages, Sec. 780.
Can appellant rely on estoppel, when he, and he alone, is responsible for the facts that constitute the estoppel? We think not. An estoppel against an estoppel destroys each other.
Hopkins v. Hopkins, 174 Miss. 643 , 165 So. 414 ; Barringer v. Dauernheim, 127 La. 679 , 53 So. 923; 5 Ann. Cas. 845, note; 10 R.C.L. 841, Sec. 146; 21 C.J. 1110.
While there is authority to the contrary, it is very generally held that where it is shown that a complainant in a bill to set aside a fraudulent conveyance participated in or instigated such conveyance, the court will, as a general rule, leave him in the position he was instrumental
in creating, and will hold that he is estopped by his conduct from attacking the conveyance.
27 C.J. 481-2, Sec. 131.
But the wife is not bound by the deed or covenants of the husband; she is neither a party or privy to the deed, is not liable to an action on its covenants, and her title cannot be divested or affected by the operation thereof. This is sufficient for the decision of this case; for, as the plaintiffs have not the legal title to the land, they cannot maintain an action of ejectment for its recovery.
Carter et al. v. Bustamente, 59 Miss. 559 .
The doctrine of laches, although resembling limitations, is not based upon, nor bound by, any express statute of limitations. A long or protracted delay in the prosecution of rights is presumed to have produced the situation last mentioned and equity looks with so little favor upon such prosecutions that it will not entertain them, although no express statute of limitations is available, unless facts are shown which will rebut the presumption of injustice arising out of the apparently undue delay, or which will excuse the same.
Griffith's Mississippi Chancery Practice, Sec. 33.
Nor does the doctrine of mere laches ever operate in this State to bar the bringing of a suit; but the right to bring a suit, either in law or in equity, may be not barred as of limitations, but cut off as of right and equity, if the facts in the case shall show clearly that the conduct of the party suing has plainly been such as to operate against him an estoppel within the meaning of the well-known laws of estoppel.
Lake v. Perry, 95 Miss. 550 , 49 So. 569.
Equity will not lend its aid to one who is guilty of unconscionable conduct and great laches in asserting rights, where deeds of record indicate title in others.
Barron v. Federal Land Bank of New Orleans, 182 Miss. 50 , 180 So. 74 .
Whatever is enough to excite attention, or put a party on inquiry, is notice of everything to which such attention
or inquiry might reasonably lead. Sufficient information to lead to the knowledge of a fact, shall be sufficient to charge him with the knowledge of that fact.
Parker v. Foy, 43 Miss. 260 ; First National Bank of Laurel v. Johnson, 177 Miss. 634 , 171 So. 11 .
V.B. Montgomery, of Belzoni, for appellee.
The appellee and appellant claim under a common source of title, and deraignment of title in such cases is unnecessary from the government down to the common source.
Simpson et al. v. Ricketts et al., 185 Miss. 280 , 186 So. 318 ; Westerfield v. Merchant, 93 Miss. 791 , 47 So. 434; Gillum v. Case, 67 Miss. 588 , 7 So. 551; Richards v. Lee, 91 Miss. 657 , 45 So. 570; Dockery v. Zerkowsky, 186 Miss. 31 , 189 So. 797 ; People's Bank v. West, 67 Miss. 729 , 7 So. 513, 8 L.R.A. 727; Slack v. Swaim (Miss.), 8 So. 545; Griffith's Mississippi Chancery Practice, Sec. 216, p. 214, Sec. 348, p. 353.
The two year statute of limitations does not apply here.
Griffin v. Griffin, 194 Miss. 622 , 11 So.2d 311 ; 42 C.J. 245, Sec. 1890; 16 L.R.A. (N.S.) 124; L.R.A. (N.S.), 1918B, 769, 770, note.
The three statute of limitations has no application here.
Griffin v. Griffin, supra; North American Trust Co. v. Lanier et al., 78 Miss. 418 , 28 So. 804, 84 Am. St. Rep. 635; Barnard v. Wilson, 74 Cal. 512 , 16 P. 307.
The six year statute of limitations has no application here.
Anthony v. Bank of Wiggins, 183 Miss. 885 , 184 So. 626 .
There has been no laches whatever. The ten year statute applies and the case has been brought well within the limit afforded by this statute.
Gordon v. Anderson, 90 Miss. 677 , 44 So. 67; Cox v. American Freehold Land Mortgage Co. of London,.
An after-acquired title by the grantor passes to the original grantee and those claiming under him.
Meyers et al. v. American Oil Co., 192 Miss. 180 , 5 So.2d 218 ; Jackson v. Holt, 192 Miss. 702 , 6 So.2d 915 ; Carter v. Bustamente, 59 Miss. 559 , distinguished; Robinson v. Lewis, 68 Miss. 69 , 8 So. 258, 10 L.R.A. 101, 24 Am. St. Rep. 254; Wightman v. Doe ex dem Reynolds, 24 Miss. 675 ; Bush v. Cooper, 26 Miss. 599 ; Mitchell v. Woodson, 37 Miss. 567 ; Edwards v. Hillier, 70 Miss. 803 , 13 So. 692; Andrews v. Anderson (Miss.), 16 So. 346; Southern Plantations Co. v. Kennedy Heading Co., 104 Miss. 131 , 61 So. 166; Mississippi Sawmill Co. v. Douglas, 107 Miss. 678 , 65 So. 885; Harris v. Byers, 112 Miss. 651 , 73 So. 614; Garner v. Garner, 117 Miss. 694 , 78 So. 623; Fitzgerald v. Allen, 126 Miss. 678 , 89 So. 146; Bramlett v. Roberts, 68 Miss. 325 , 10 So. 56; Code of 1942, Secs. 843, 846; Mississippi Law Journal, Oct. 1945, Vol. 17, No. 3, p. 153-159; 19 Am. Jur. 641, Sec. 42; 36 Am. Jur. 811, 812, Sec. 241, p. 813, Sec. 243, p. 815, Sec. 248; 37 Am. Jur. 170, 171, Sec. 750, p. 176, 177, Sec. 762; 16 L.R.A. (N.S.) 122, 123; 52 L.R.A. (N.S.) 877, 878; 25 L.R.A. 83; L.R.A. 1918B, 769, 770, note; 58 A.L.R. 346-394, note; Restatement of the Law, Restitution, p. 780-782, Sec. 190; 42 C.J. 245, 247, Sec. 1890; 61 C.J. 1203, Sec. 1626.
Grantor or mortgagor cannot acquire outstanding tax title and set same up against grantee and those claiming under him.
Barnard v. Wilson, supra; 36 Am. Jur. 815, Sec. 248; 37 Am. Jur. 176, 177, Sec. 762; 61 C.J. 1203, Sec. 1626; L.R.A. 1918B, 769, 770, note.
The estoppel which applies to the grantor or mortgagor applies with equal force and effect to the wife of the grantor or mortgagor.
Robinson v. Lewis, supra; Stuart v. Pickett, 193 Miss. 455 , 10 So.2d 207 ; Hatchett v. Thompson, 174 Miss. 502 , 165 So. 110 ; Walker v. Woods, 166 Miss. 471 ,, 276, 87 S.W. 430; 61 C.J., Taxation, Secs. 1615, 1616, 1619, 1622; 51 Am. Jur. 922, Sec. 1058; 27 C.J. 644, Sec. 409.
Husband and wife are always estopped to acquire outstanding title and set same up against the vendee of the other of them. Such a purchase operates as a redemption.
Griffin v. Griffin, 194 Miss. 622 , 11 So.2d 311 .