Creegan v. Hyman , 93 Miss. 481 ( 1908 )

Whitfield, C. T.,

delivered the opinion of the court.

The facts in this case are as follows: Samuel IIyman, one of the appellees, a citizen of New Orleans, La., filed his bill of complaint against appellants some time in the fall of 1905, in the chancery court of Sunflower county, Miss., to cancel certain patents issued by the state of Mississippi to appellants to section 25, township 19, range 3 W., Sunflower county, for what is known as “swamp and overflowed lands,” alleging that he was the real and true owner of said section. The bill was not ■ sworn to and did not waive an answer under oath. A demurrer was interposed and overruled, on the strength of Means v. Haley, 86 Miss. 57, 38 South. 506, when an appeal was prosecuted to the supreme court, and there affirmed, without any argument or brief by appellants. An answer was then filed, denying the allegations of the bill in positive terms, and sworn to. At the November term, 1906, of the chancery court, Hyman made a motion to amend his bill by adding the words, “answer under oath being hereby expressly waived,” at the close of the first paragraph of the bill. This motion was made after the cause, with answer sworn to, had been set down for hearing at that term of court by appellants. The court overruled the objections of appellants, and permitted the amendment to be made, when appellants excepted, and the cause was continued until the May term, 1907, of the chancery court. After the cause had been continued at the December term, 1906, the deposition of Hyman, the complainant, was taken on interrogatories filed in tho clerk’s office, directed to the complainant, Hyman, in accordance with section 1938 of the Code of 1906. Hyman answered these interrogatories, and by his answer disclosed the fact that he was only a trustee; that the legal title to the land in controversy belonged to the Sutherland-Innes Company, a Canada corporation; that the title had been taken in his name, as a protection to the Canada corporation, for the benefit of the stockholders, of whom he was one. At the May term, 1907, or the next term of the court, the Sutherland-Innes Company, a Canada corporation, filed its petition to be made a party complainant with Hyman, its Stockholder. This petition showed the Sutherland-Innes Company to be a corporation organized and operating under the laws of the province of Ontario in tho Dominion of Oanáda. Appellants objected to the granting of the prayer of the petition, and among other objections alleged that the petition showed the Sutherland-Innes Company to be a non-resident alien corporation, and therefore incapacitated and unable to hold lands in this state, under section 2768 of the code of 1906, and claimed, further, that any title which said corporation might acquire or hold would, under said section, escheat to the state. The prayer of the petition was granted, and the Sutherland-Innes Company permitted to join with IIyman as a party complainant, when appellants excepted, as-shown by order of record in this cause.

On the hearing the complainants deraigned their title by beginning with the tax sale to the levee treasurer of Sunflower-county, in 1859, for the levee taxes of ithe year 1858, and further introduced a series of tax titles, state and levee, and finally through Gwin and Hemingway, ex officio liquidating levee commissioners, to Gordon, and from Gordon, through a series of conveyances, to the Delta & Pine Land Company, and a deed from the state of Mississippi to the Delta & Pine Land Company, under- the “quieting act” of 1888, and then a series of' conveyances to the Sutherland-Innes Company, and from the Sutherland-Innes Company to Samuel Hyman, complainant. After all the testimony for the complainants was introduced,, appellants moved to exclude all of the testimony of complainants, because the testimony failed to show any title to the land' in controversy, as the same had never been liable for tax sale, and as the title, if any, acquired by the Sutherland-Innes Company, had escheated to the state. This motion was overruled. Appellants then introduced, for their testimony, patents from the Hnited States to the state of Mississippi to the land in controversy as “swamp and overflowed lands,” and then patents-from the state of Mississippi to appellants, and also the deposition of Samuel Hyman, which had been taken on interrogatorseswhich had been-filed under section 1938 of the Code of 1906. Appellants also introduced a certified copy of the bond of J. E. Johnson, levee tax collector of Sunflower county, showing that" he had not given the bond required by law, and that any sale, in consequence, by him, on account of his failure to give the-proper bond, was void. The chancellor found for the complainants, and decreed accordingly. From the decree of the chanellor, granting the prayer of relief for complainants, appellants, appealed to this court.

First. It was error in the court below to permit Hyman to-amend his bill, after the answer had been sworn to and filed,, and the cause set down for hearing at the December term, 1906, by adding the words, “answer under oath being hereby expressly waived,” at the close of the first paragraph of the prayer of the bill. The answer having been sworn to and filed, and the cause set down for hearing, it was then too late for such an-amendment to have been permitted. In Fletcher’s Equity & Equity Pleading, section 648, it is said: “Under a statute-permitting the complainant to waive answer under oath, it has-been held that he must waive an answer under oath to every part of the bill or to no part of it; and, after the defendant has-put in an answer, the complainant cannot, by amendment waiving answer under oath, get r:id of the consequences of a denial-under oath of the matters of the bill. If the bill requires an. answer under oath, and after the coming in of a sworn answer’, the complainant dismisses his bill, such sworn answer, filed in-the prior suit, will remain evidence, and the complainant can have no decree under his Second bill, unless his sworn answer is-overcome by other proof.” And so, in 1 Ency. of Pl. & Prac.,. in the notes on page 470, it is said: “After a bill seeking a discovery has been answered, the complainant cannot amend his-bill so as to waive discovery, and thus get clear of the defendant’s answer” — citing Allen v. Woodson, 50 Ga. 53. See, also, Burras v. Looker, 4 Paige (N. Y.) 227. No testimony whatever had been taken in this case by Hyman when this cause war set down for hearing. Under these circumstances, the answer was evidence under our statute, and entitled to full weight as such, and could not be destroyed at that time as evidence by the amendment indicated.

Second. We do not think it was error in the court below to-allow the Sutherland-Innes Company to be made a party complainant. We do not think the motion came too late from the complainant to be made a party.

Third. We come now to the chief ground upon which appellees rely, which is that this case was necessarily decided for them under the case of Means v. Haley, 86 Miss. 559, 38 South. 506. Appellees say that there was a demurrer filed to the bill originally in the court below, and an appeal taken to this court, and that decree, overruling the demurrer in the court below, affirmed, on the authority of Means v. Haley, and hence that that decision of this court, affirming the action of the court below in overruling said demurrer, is the law of this case, and that the question is thus res adjudicaba. This is an entire misconception. There is no room for the doctrine of res adjudicaba in this case. The original bill in this case was filed by one Samuel Ilyman, in which he alleged himself to be the true and legal owner of the land in controversy. The demurrer, which was interposed at the December term, 1905, of the court below, was a demurrer to that particular bill so filed by Hyman, and it was on an appeal from a decree overruling that particular demurrer to that particular bill, in which Hyman alone was the complainant, that the decree of the court below was affirmed, and affirmed, too it may be said in passing, without argument Or brief on the part of the present appellants. After all that had happened, it-appeared from interrogatories thereafter propounded to Hyman that his allegation was untrue — that he was not the legal owner of the land, and that he had no interest whatever in the land, either legal or equitable, but that the Sutherland-Innes Company claimed this land, as hereinbefore set out, and that ho (Hyman) was a mere dummy or figurehead, acting for them, doubtless because of their knowledge of the penalty provided by section 2768 of the Code of 1906; and it was after all this testimony had been taken that the Sutherland-Innes Company, for the first time, at the May term, 1907, became a party complainant to this bill. It therefore appears that the demurrer which was overruled was a demurrer to a bill filed by Hyman, trustee, alone. Before the plea of res adjudícala can prevail, four things must be shown: “(1) Identity in the thing sued for; (2) identity in tlie cause of action; (3) identity of persons and parties to Hie action; and (4) identity of the quality in the person for or against whom the claim is made.” 24 Am. & Eng. Ency. of Law, p. 778. The last three essentials are wanting in this case. This disposes of the contention of learned counsel that the deeree of this court, affirming the decree of the court below overruling the demurrer, constitutes res adjudícala of this present cause of action.

But learned counsel for appellees also misconceive the case of Means v. Haley, 86 Miss. 557, 38 South. 506. Nothing whatever was decided, so far as the decision is concerned, in Means v. Haley, except that where there had been sales of lands to the levee board, which lands were the subject of sale for taxes, no irregularities or defects in such sales, save constitutional defects, should avail after the passage of the act of 1888 (Laws 1888, p. 40. c. 23) to defeat tlie title to lands so held under such sales to said levee boards. This is shown by a careful reading of tlie opinion at page 562 of 86 Miss., and page 507 of 38 South., giving the history of the act. It is said there that “the legislature was not only 'aware of the inability of many purchasers to make proof of title in the liquidating levee board, but it recognized that many of the sales by which said board acquired its claim of title were voidable, if not absolutely void, and remedied that by enacting that all such sales (except as to certain occupants and claimants under the abatement act) theretofore made were valid, notwithstanding any defect or irregularity in the same, and shall not be impeached for any cause, except that the tax for which said land was sold had been paid.’ ” There could be no tax to be paid of any kind whatever on lands not the subject of any taxation at all. It may be conceded, and is doubtless true, that the language of the opinion, especially on page 563 of 86 Miss., and page 507 of 38 South., is entirely too broad, and may very well have misled the learned counsel for appellees. Nothing, we repeat, was meant to be decided by that case save only that sales to the levee boards of lands subject to taxation, where no constitutional defect was involved, were made valid by the act of 1888 against any assailment, except by showing that the taxes due on said lands had been paid.

But the lands in this case were swamp and overflowed lands, vested in the state of Mississippi, and, of course, never were the subject of taxation. No taxes of any hind whatever were ever due upon the lands, in this case, and this case is controlled squarely by the two decisions of this court, recently announced and now reaffirmed, of Howell v. Miller, 88 Miss. 655, 42 South. 129, and Edwards v. Butler, 89 Miss. 179, 42 South. 381. In the former of these cases, Calhoon, J., speaking for the court, said, in a case involving just this very cláss of lands, swamp and overflowed lands, at page 667 of 88 Miss., and page 130 of 42 South.: “The swamp and overflowed lands were never the subject of taxation and sale for nonpayment. Not being subject to any tax, any assessment and sale of them had no warrant in law, and the purchaser acquired no right against the state or the state’s vendee, who bought with the warrant of the law for their especial sale.” In Edwards v. Butler, 89 Miss. 179, 42 South 381, Chickasaw school lands were involved, •granted to the state of Mississippi by the national government. We there said: “It is perfectly manifest that they were never subject to taxation, that there never existed any power anywhere to sell them for taxes, and hence all the tax titles set up in this record are absolutely null and void. These lands are held in trust by the state of Mississippi for the education of the children of the townships in which these sixteenth sections lie. They were never taxable, and hence any effort to subject them to taxation is void. The act of 1888, iAu act to quiet and settle the title to certain lands in the Yazoo Delta which were sold by the commissioners of the chancery court of Hinds county,’ etc. (Laws 1888, p. 40, c. 23), as a matter of course was never intended to embrace any other lands than the character of lands set out in the caption of that act, and had no relation whatever to lands like those in this record. The history of the act of 1888 is perfectly well known. It was intended, as it states, to quiet the title to certain lands in the Yazoo Delta, which had been sold by the commissioners of the chancery court of Hinds county. The title to these lands had become involved in the greatest possible confusion by reason of numerous tax sales occurring at various times, and this confusion constituted so great a cloud upon the title to lands in that delta that this act, wisely or unwisely, was passed to quiet title to that specific character of lands. The legislature never dreamed of applying its provisions to any other lands than those named in the caption of the act, and hence the land in controversy was totally unaffected, of course, by its provisions. To give the act the opposite construction would make it manifestly unconstitutional.”

It must be too obvious for any further comment that if tho act of 1888 were construed as appellees insist it should be construed, and as they say it was construed in Means v. Haley, two things are perfectly plain: That such act would be unconstitutional, as said in Edwards v. Butler; and, second, that the case of Means v. Haley has already been overruled by both Howell v. Miller and Edwards v. Bulter, supra. The title of appellants to the land in controversy is perfect, and the contention set up by the appellees cannot be maintained. Means v. Haley had no such purpose, and, if it had, it, as said, has been overruled already by the two cases named. This cuts up the appellees’ case by the roots; but there are several other things which may be said to’ show that, upon other grounds, the result would be the same.

Fourth. The appellees say in the third paragraph of their brief that they claim that they derive their title from W. W. Stone, auditor, and that this deed is made under the provisions of the second section of the act of 1888. They further say that at -the time of the execution of this deed the title to this land was in the state, and they further say, remarkably enough, in-view of their other contentions, that the levee board never held: title to this land at all, and that those sales passed no title whatever. If the appellees claimed under this deed, it was their duty to point out specifically some particular sale under which they claimed before they could invoke the presumption conferred by the act of 1888. In the case of National Bank of the Republic v. Louisville, etc., R. Co., 72 Miss. 447, 17 South. 7, Cooper, J., speaking for the court, pointed out this carefully and with great . precision. In concluding that opinion he said: “But when we read the whole act, and consider its purpose, as shown by the-preamble and by the body of the act, it is evident that the deed is mad e prima facie 'evidence in aid of a particular claim of title-made by the state under some designated and particular tax sale. The purpose of the deed authorized to be made by the auditor is to pass some particular title claimed by the state, and not torn ake an instrument in form a conveyance, but in truth carrying-no estate. The statute did not contemplate a conveyance from the state, claiming nothing in the land, to the end that, as against, the original owner, a mere presumption should be transformed to his adversary. One claiming under the deed of the auditor-must point out the title which the state claimed to own and to transfer to him. He cannot, by a mere averment that a sale was made in one year or another, and the production of the auditor’s-deed, p.ut his adversary to prove that in fact the asserted sale-was never made. To give this effect to the deed would be, in effect to- hold that a conclusive, instead of a prima facie, case is-made by its production, and manifestly this was never contemplated.” We think this sound beyond all controversy, and reaffirm it. If, then, it logically follows, the appellees stand and claim under- the alleged deed of the auditor, they must specifically point out some particular sale in aid of which they invoke the presumption given by the act of 1888, and this they hare wholly failed to do. Wherefore the auditor’s deed is of no avail", to them.

Fifth. The appellees claim again, amongst their many conflicting claims, that their title is dcraigned under the Gibbs-Green decree from the commissioners to Eugene Gordon, and from Gordon to Evers, and from Evers, by decree of the court, to Watson, and from Watson to the Delta & Pine Land Company; and they say that, in view of the fact that Evers conveyed the land to the Delta & Pine Land Company, it was immaterial whether proper decree and confirmation of sale to Watson, in the case of Watson v. Evers, in the United States District Court, was shown or not. . But this' claim must fail for the reasons now to be pointed out: It is shown, by paragraph 9 of the bill, that this land was sold to the state on the 8th day of March, 1883, for the taxes of 1882. The bill then shows, in the next paragraph, that on the 13th of March, 1885, the state conveyed this land to Jas. D. Stewart, receiver. The next paragraph, No. 11, shows that this land, which had been sold on the 8th of March, 1883, to the state of Mississippi, while it was the property of Evers, was on the 13th day of March, 1885, conveyed by the state to Stewart, receiver, and yet, on the first Monday of March, 1886, this same section, after having been previously sold by the state on the 13th of March, 1885, was pretendedly sold again for the taxes of 1885, and struck off to the state. Now, it is manifest that whatever title Evers had was, on the 8th of March, 1883, sold to the state, and the title then acquired by the state was, in turn, conveyed by the state on the 13th of March, 1885, to Jas. D. Stewart, receiver, so that, when the sale was made on the first Monday of March, 1886, for the taxes of 1885, that sale was absolutely void under the case of Wildberger v. Shaw, 84 Miss. 442, 36 South. 539, in which we hold that lands purchased from the state after February 1st and before October 1st are not liable for taxation for the year in which the purchase is made, and therefore, since this land had been sold by the state to Stewart, receiver, on the 13th of March, 1885, it could not legally be sold on the first Monday of March, 1886, for the taxes of 1885; and yet this is the only title the state laid any claim to at the time when the auditor executed the deed in question to the appellees under the quieting act of 1888, and, this particular sale being absolutely void, as the bill itself shows, there was no title whatever left for the state to convey under that act.

In order to meet this predicament, in which appellees have placed themselves, by their own evidence, appellees say that if all this was true, and if it was further true that there was no proper confirmation of the sale from Stewart, receiver, and McKee, commissioner, they yet acquired the title of Evers by reason of the conveyance made to Evers, as shown by paragraph 14 of their bill, in which deed Evers and others on November 13, 1886, made a quitclaim deed to the Delta & Pine Land Company of this and other land. In other words, appellees would claim, according to paragraph 14 of their bill, under this quitclaim deed from Evers, made on the 13th of November, 1880, when they have themselves shown, in paragraphs 8, 9, 10, and 11 of their bill, that the land had previously been sold twice for taxes to the state — once on March 8, 1883, for the taxes of 1882, and that title had been sold by the state to Stewart, receiver, and that afterwards, on the first Monday of March, 1886, the land was again sold for taxes to the state without authority, since no taxes were due for the year 1885, the land having been previously sold on March 13, 1885, to Stewart, receiver. Even if the sale in 1883 was valid, manifestly, Stewart had that title, and Evers had no title to convey on the 11th of March, 1886, after the land had been sold for taxes in 1883 to the state, and conveyed in 1885 by the state to Stewart, receiver, so that in a wholly different view of this case it is clear that independently of the quieting act of 1888, and independently of Means v. Haley, if it had meant, as it does not, what the learned counsel for appellees contend, appellees had no way by which to acquire this title, except through a conveyance from Stewart, receiver, to some 6ne through whom appellees claim. Paragraph 12 of said bill shows that Jas. D. Stewart, receiver, and James McKee, special commissioner, conveyed section 25 to Watson on the 11th of March, 1886; but this deed was objected to by the appellants for the want of any authority whatever shown for Stewart, receiver, and McKee, special commissioner, in the United States District Court for the Southern District of Mississippi, to convey this property, and that was a good objection, and should have been sustained. How, then, could counsel for the appelless logically have contended that it was immaterial whether there was such proper decree and confirmation of sale to Watson, in the case of Watson v. livers, shown by the record or not? So far as this record discloses, there was no proof whatever of any authority bn the part of this receiver, Stewart, and this special commissioner, McKee, to make this deed, and -there was no proof that the act of the receiver and commissioner in making the deed had ever been confirmed by the federal district court. The objection, as stated, should have been sustained, and, being sustained, there was a fatal hiatus in the chain of title in this view on the part of the appellees, without any reference whatever to the act of 1888 or Means v. Haley, even as wrongly understood by the learned counsel for the appellees.

Sixth. We conclude by referring merely, since what we have said disposes of the case, to the fact, made clear by the record, that every alleged sale to the levee board in this case was absolutely null and void. For example, the first deed from Eli Waits, tax collector, to Eield, levee treasurer, was void, under Vassar v. George, 47 Miss. 730, because the deed was never filed for redemption; and the next deed from Eli Waits to Eield, levee treasurer, was void for the same objection, and also for the further reason that it had no seal, as required at that time. See Gibbs v. McGuire, 70 Miss. 646, 12 South. 829. The next deed, from J. E. Johnson, sheriff, to the liquidating levee commissioners was void under Vassar v. George, 47 Miss. 729, because no proper bonds, as required by the statute, had been made. But his opinion is already too protracted. We merely referred to the fact that all these sales were null and void in passing.

The decree of the court below is reversed and the bill dismissed. Reversed and dismissed.