Louisville, New Orleans & Texas Railway Co. v. Buford , 73 Miss. 494 ( 1895 )

Whitfield, J.,

delivered the opinion of the court.

The sale on the fifteenth of April, 1867, vested the title in the ten cent levee board, and the alleged sales thereafter to the liquidating levee commissioners, and to the state in 1872, were void (Shotwell v. Railroad Co., 69 Miss., 541), and, under the provisions of the act of April 11, 1876 (Laws of 1876, p. 166), this title was vested in the state (Shotwell v. Railroad Co., supra). Whatever title the state had was vested in Charles Scott by the auditor’s deed of March 12, 1883. Code of 1880, §561; Caruthers v. McLaran, 56 Miss., 371; Gamble v. Witty, 55 Miss., 27; Paxton v. Land Co., 68 Miss., 739.

It is very earnestly insisted that the auditor’s deed of March, 1883, to Scott, is void, because the auditor, it is said, in executing this deed, under § 561 of the code of 1880, was acting in the execution of a statutory power, just as he was held to have been in McCulloch v. Stone, 64 Miss., 378, and Murdock v. Chaffe, 67 Miss., 740, in executing deeds under the act of 1884 (Laws of 1884, p. 182), and that, as the auditor did not require the payment of all taxes “from 1874 up to 1882, inclusive,” but only the taxes of “the years of 1881 and 1882,” he did not comply with the terms of the statute — his sole power to sell — which, as it is contended, required him to collect not only all the taxes, etc., due under the particular sale of March, 1882, but all taxes due from 1874 to 1882, inclusive. This construction is unsound. It fails to take into account the broad distinction between the two schemes — the one provided by § 561, code of 1880, and the other by the act of March, 1884. The former (§561, code of 1880) is part of the general scheme of the law in reference to redemption or purchase of lands sold to the state for taxes, and has reference, as applied in the instance before us, to the terms provided by the general law as to the purchase of lands forfeited to the state for taxes — any lands so forfeited anywhere in the state. What are those terms ? The intending purchaser of any lands so sold, under this general law, to the state for taxes, is required, by § 561 of the code of 1880, “to pay to the auditor of public accounts the amount of all taxes for which such land was sold, and all the costs incident to such sale [in the singular], and of all taxes and costs accrued thereon since such sale, and twenty-five per centum of all taxes for which such land was sold added thereto,” etc.

‘ ‘ Such sale, ’ ’ in this section, means any one particular sale of land for taxes to the state, in pursuance of the general provisions of the law in chapter 10 of the code of 1880, and “all taxes and costs accured thereon since such sale,” means all taxes and costs accrued on the land thus sold since the one particular sale under which the purchaser is buying. In contemplation of law, the state will never have, ought never to have, title to lands sold to it for taxes, save under one sale. Once validly sold to the state for taxes, until redeemed or purchased, it remains state land, and cannot again be the subject of sale to the state for taxes, if the law be observed, and it is contemplated that the law will be observed, and § 561 was passed in view of this expected compliance with the law regulating sale of land for taxes, and itself contemplated that the title to land sold to the state for taxes under the general law would be so vested in the state in pursuance of one proper sale, and one only, and hence its provisions as to payment of taxes, costs, etc., by the intending purchaser, relate to the taxes and costs incurred under and since some one such particular sale. If it be said that, in fact there were instances in which the same land appeared to have been sold to the state for taxes several times, though there had been no redemption and no purchase since a first valid sale to the state, the answer is that no such chaotic condition of title by the state to lands sold to it for taxes can be attributed to the law. The law is clear, however careless or ignorant those who conducted tax sales may have been. The law is £ £ not the author of confusion. ’ ’ On the other hand, the act of 1881, page 182, is an act not general, but special; £ £ an act for the benefit of purchasers of levee lands sold ’ ’ under the Gibbs-Green decree, and the auditor, in executing conveyances under that act, was required, as a condition precedent to his power to convey, .to collect £ £ all state, county and levee taxes due thereon up to the date ’ ’ of said deed.

The state imposed, as the condition of parting with its title to the lands of the particular class referred to in the act of 1881, the payment of all state, county and levee taxes to the date of the quitclaim by the auditor. The two schemes are thus seen to be essentially different, and this contention must fail. The deed from Scott and Montgomery, of date December 19, 1887, to appellee, vested that title in him. This would be so if it were conceded that the sale to the state, in March, 1882, was void, for the state had title independently of that sale. But it is also true that appellee was in actual occupation of part of the land, claiming the whole, under the deed of December 19, 1887, from that time to April 1, 1891, when this bill was filed, from which it follows, under Patterson v. Durfey, 68 Miss., 779; Carlisle v. Yoder, 69 Miss., 384, and other decisions of this court, that the title under the tax sale to the state in March, 1882, is unassailable.

The paper title of appellants, therefore, fails, and, Abraham Williams being shown not to have had any actual occupation of any part of the land, the decree is correct as to the land claimed by him — southwest one-quarter of southwest one-quarter of section 25, township 24, range 7, west, in Bolivar county, Miss. — and, as to that, is affirmed. William Lightfoot is shown to have had actual occupation of a small part of the land claimed by him — the northwest one-quarter of southwest one-quarter of the section aforesaid. But it is also conclusively shown that appellee was in the actual possession of part of this tract, claiming the whole, under his said deed from Scott and Montgomery. We have, then, the appellee in actual possession of a part of this tract, under a perfect paper title, claiming the whole, according to the calls of his deed, and the appellant, Lightfoot, without any valid paper title, in actual possession of a small part of the same tract, claiming under the auditor’s deed of May 23, 1888, made in pursuance of the act of 1888 (Laws of 1888, p. 40). Lightfoot’s contention is that,. having, for twelve months after the passage of said act, been in the actual occupation of a part of said tract, claiming the whole, § 4 of that act vests him, by its own force and effect, with perfect title to the whole, notwithstanding the fact that appellee has a perfect paper title and has actual possession of a part of the same tract, claiming the whole. It will be noted that this is not the case of the holder of the perfect paper title not being in possession, nor of his not knowing actually that the tax title holder under this act of 1888 was in actual possession of a part of the same tract, claiming the whole, for the proof shows actual knowledge on Buford’s part of Lightfoot’s possession, of its adverse character, and of his claim to be owner of the whole. Lightfoot’s possession, therefore, so far as the quality and character of that possession is concerned, falls strictly within the legal definition of adverse possession. Alexander v. Polk, 39 Miss., 755; Woods v. Transportation Co. (Ala.), 3 So. Rep., 475; 1 Am. & Eng. Enc. L., 264.

“A party who relies upon adverse possession,” says this court in Alexander v. Polk, supra, must show the actual knowledge of the real owner that he claims in opposition to or defiance of his title, or he must show such an occupancy and user, so open and notorious and inconsistent with, as well as injurious to, the rights of the true owner, that the law will authorize, from such facts, the presumption of such knowledge by the true owner. It is not the mere occupancy or possession which must be known to the true owner to prejudice his rights, but its adverse character. The proof clothes Lightfoot’s possession with the character of adverse possession under color of title, within this definition.

Recurring, then, to the contention of Lightfoot, set out above, we find it necessary to construe § 4 of the act of 1888. That section is in these words: “Twelve months’ occupation, at any time after the passage of this act, of any tract of land, under any such conveyance from said commissioners of the Hinds county chancery court, or under said auditor’s deeds, or any part thereof, by any such occupant claiming the whole, shall forever bar any action at law or in equity for such tract. ”

What is the true construction of this § 4 of this act? Does it mean that one claiming under the deed of said commissioners or of the auditor, who has had twelve months’ occupation since the act of 1888, of any part, however small, of any tract of land, however large, embraced in such deed (the property, prior to tax sale, of different owners), acquires, thereby, perfect title by the force of this remarkably short and peremptory statute of limitations ? If so, then we are all agreed that said section would operate, so construed, mere 'legislative confiscation of estates, and it would be clearly unconstitutional and void. In Tyler on Ejectment and Adverse Possession, pp. 900, 901, it is said: “As a general rule, when a large tract of land is divided into lots, the possession of one lot adversely will not create an adverse possession of the other parts of the tract. This doctrine has been repeatedly recognized by the courts. . . . The doctrine of adverse possession, applied to a farm or single lot of land, is, in itself, reasonable and just. In the first place, the quantity of land is small. Possessions thus taken under a claim of title are generally for the purposes of cultivation and permanent improvement. It is generally necessary to reserve a part for wood land. Good husbandry forbids the actual improvement of the whole. The possessions are usually in the neighborhood of others. The boundaries are marked and defined. Frequent acts of ownership in the parts not cultivated give notoriety to the possession. Under such circumstances, there is but little danger that a possession of twenty years [with us, under the general statute, ten years] will be matured against the right owner. If it occasionally happens, it will arise from a want of vigilance and care in him who has the title. It is believed that no well-founded complaint can be urged against the operation of this principle, but the attempt to apply the same principle where a large tract is conveyed would be mischievous indeed, and the doctrine is never sanctioned by the courts” — citing authorities. And again, at page 902, he quotes the supreme court of Vermont in Chandler v. Spear, 22 Vt., 388, as holding that the “doctrine of constructive possession will not extend to the case of a few acres taken possession of for the purpose of gaining title to a whole township.

But it is our duty to give this § 4 such a construction, if we reasonably can, as will uphold and not overthrow it. And a majority of the court think it should be held to mean that, where one claiming under such deeds has had, for twelve months since the act of 1888, occupation of a part of a single tract of land, to be used as a single tract, claiming the whole of such single tract under the calls of such deed, such person acquires title, under said § 4, to. the whole of such tract, when the person holding the true paper title is not also, at the same time, in possession of part of such tract.

But our case, as has been shown, is one where the holder of the perfect paper title is now, and was during said twelve months, himself in possession of a part of this very same tract, claim - ng the whole under the calls of his deed, and the claimant under the deed of the auditor, under the act of 1888, was also in adverse possession of a small part (another and a different part) of the same tract, claiming the whole under the calls of his deed. What is the law applicable in such case of conflicting claims to adverse constructive possession ? Says Mr. Tyler, page 900 of his work, supra: “Two persons representing separate interests can never be in adverse constructive possession of the same land at the same time; so that, from the very nature of the case, the owner of the premises being, in contemplation of law, in the constructive possession of his land, when not in the actual possession thereof, cannot be disseized except by an entry and occupancy by another, and only to the extent of such occupancy, ’ ’ citing a great array of authorities.

Says the supreme court of Pennsylvania in Miller v. Shaw, 7 Serg. & R. Rep., 143: “It is a contradiction in terms that a man by wrong should have any right, and that this right by wrong, should be extended by construction. There cannot be two conflicting constructive possessions, one in the owner and the other in the trespasser.' The right always draws to it the possession, and it there remains until seized by the wrongdoer, whose possession is strictly possessionem pedis; who must necessarily be confined to what he has grasped — his real and actual occupation. Beyond that no length of time will protect him, because beyond that the owner’s possession has never been changed. It always is, in contemplation of law, continued in him. These are the dictates of common sense, of common jus- . tice and of the common law. ’ ’

Says the supreme court of the United States, in Hunnicutt v. Peyton, 102 U. S., pp. 368, 369: “It is true that, when a person enters upon unoccupied land under a deed or title, and holds adversely, his possession is construed to be co-extensive with his deed or title, and the true owner will be deemed to be disseized to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner be, at the same time, in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this, though the owner’s actual possession is not within the limits of the defective title. The reason is plain. Both parties cannot be seized at the same time of the same land under different titles. The law, therefore, adjudges the seizin of all that is not in the actual occupancy of the adverse party to him who has the better title. These distinctions are clearly shown in the cases. ’ ’

These authorities clearly put the principle governing this class of cases, and, applying that principle to the case in hand, it follows that Lightfoot is only entitled to so much of the land claimed by him as he shall be able to clearly show by testimony was in his actual occupancy. He will be limited strictly to his actual possession — possessionem pedis. To that extent he is entitled to relief.

The decree is affirmed as to Abraham Williams,.and, as to William Lightfoot’s claim, is reversed only so far as to enable him to show the extent of his actual occupancy. Costs to be divided.

Decree accordingly.