Wilson v. Naylor , 116 Miss. 573 ( 1917 )

Stevens, J.,

delivered the opinion of the'court.

Appellee filed a mandamus suit against the state auditor to require the issuance of a warrant refunding the purchase money for certain land purchased from the state. It. appears that one W. T. Keeton purchased eighty acres of land from the state in March 1900, and received a patent therefor. In 1905 appellee purchased the land from Keeton and in May, 1917, appellee requested the land commissioner to investigate and cancel the state’s title to said land because it appeared that the title was in the United States government. The land commissioner investigated the title, referred the matter to the attorney-general in accordance with the method provided hy statute, and the attorney-general rendered an opinion to the land commissioner to the effect that the state had no title. Appellee then demanded from the auditor the issuance of a warrant in accordance with the provisions of section 2947, Code 1906. This statute reads:

“Patents Canceled Where State has no Title.— . . . If the state of Mississippi, through the auditor or land commissioner’s office, has heretofore issued, or shall hereafter issue, a patent or patents for any lands to which tlie state holds no title, or which did not belong to it at the time of the issuance of such patent or patents, or any part of which land may have caved into the river before the issuance of such patent or patents, or hy oversight or otherwise two patents may have been, or may hereafter be, issued therefor, the land commissioner shall investigate the case and report to the attorney-general, who, if he shall find the lands so patented did not belong to the state, shall so report to the land commissioner, and if the land commissioner shall find that such lands or any part thereof had caved into the river before the issuance of such patent, or that the patentee did not acquire any land or title under such patent he' shall mark such patent or patents, or in case of loss of the original, the certified copy of such patents, 'canceled,’ and take them, or a duly certified copy, to the auditor of public accounts, who shall file the same as a voucher in his office, and shall issue his warrant in favor of the patentee or his or her assignees, heirs, or representatives, for the amount paid the state for such canceled patent or patents, and the land commissioner shall certify all such cancellations to the clerk of the chancery court of the county in which said patents have been recorded, who shall thereupon cancel the record of it. When only a part of the purchase money is refunded it shall be first noted by the land commissioner in ink across the face of such patent and noted by the chancery clerk upon the record of patent canceling it in such proportion only.”

The auditor, acting under legal advice, declined to issue a warrant, contending that under section 3096, Code 1906 (section 2460 Hemingway’s Code), the statute of limitations operated in favor of the- state and barred appellee’s right to a refund. Then it was that appellee filed his petition for a mandamus to compel the issuance of the warrant. The circuit court rendered a judgment in favor of appellee, and from this judgment the state prosecutes an appeal.

It is conceded that statutes of limitation in civil cases run in favor of the state, and that they begin to run “when the plaintiff first had the right to demand of the officer or board authorized to allow or disallow the claim sued upon.” But the statute (section 3096, Code 1906) has not barred appellee’s right in the present case because the land commissioner, under the advice of the attorney-general, did not cancel the patent until May, 1917, and the right of Mr. Naylor to a refund of the purchase money did not accrue until the land commissioner canceled the patent and presented the original or a certified copy of the patent marked “Canceled” to the auditor. Under the statute the auditor is powerless to act until lie is presented with the canceled patent, and then for the first time he has the right to issue a warrant in favor of the patentee or his assignee, heirs, or representatives, for the amount of the purchase money. There can be no cancellation under this statute until the attorney-general and the land commissioner find “that the patentee did not acquire any land or title under such patent,” and no warrant can issue until the canceled patent or a certified copy thereof is presented to the auditor of public accounts. This is the method plainly outlined by the statute itself. Without this statute appellee would not be entitled to a warrant in the present case. There is a method outlined by section 2927, Code 1906, providing that the state shail refund the purchase money to its vendee or his heirs or assigns where the title to land sold by the state has failed, “but the question of failure of title can only be determined, except as hereinafter provided, in a suit filed in the county in which the land is situated, and the land commissioner shall be made a party to every such suit. ’ ’ The rights of appellee are not based upon section 2927, and are not attempted to be based upon that statute. The sole reliance here is upon section 2947, which may be termed a refunding statute, a summary proceeding for the cancellation of patents where the state’s title is obviously bad, and the state in this summary proceeding relies upon the good judgment of the land commissioner and the legal advice of the attorney-general. There is no dispute about the facts of the present case. It is manifest that appellee’s “right to demand payment of the officer, ’ ’ in this “case the state auditor, did not accrue until May, 1917, and that the statute of limitations could not begin to run until that right had accrued. Of course* the cause of action here was not available until the right to demand the warrant accrued, and this right was first brought into 'existence by the cancellation of the patent. It was said in Swing v. Brister, 87 Miss. 516, 40 So. 146, 6 Ann. Cas. 740, that until a judgment turned a contingency into a certainty the statute did not begin to run. So here, until the cancellation of the patent turned a contingency into a certainty the statute did not begin to run.

But it is contended that under the holding of Pevey v. Jones, 71 Miss. 647, 16 So. 252, 42 Am. St. Rep. 486, where one conveys land owned by the United States and warrants the title, the eonvenants are broken immediately. upon the execution and delivery of the deed, and that the' right of action at once accrues to the vendee to recover the purchase money. Pevey v. Jones has no application to the question here under consideration. This is not an action upon the covenants contained in the deed. The state has not warranted the title, and is not here sued upon its warranty. Appellee is only claiming a statutory right to a refund of the purchase money,. and in pursuing his remedy follows the method laid down by the very statute which defines his rights. The right and the remedy are both provided by the statute under review. The case of Pevey v. Jones was an action between two individuals. Here the sovereign state is dealing with one of its own citizens.

The case of State ex rel. v. Chisago County, 115 Minn. 6, 131 N. W. 792, Ann. Cas. 1912D, 669, supports appellee’s contentions. That was a proceeding by mandamus to compel the refund of taxes paid by a holder of a void tax title. It is there held that:

“The holder of a tax certificate is not bound to assume or determine that his title is invalid. It carries the inference of validity. ... If the rule were as claimed, the holder of a tax certificate, instead of resting on its presumed validity, would be bound to examine each step in the tax proceeding in the light of each decision of the supreme court, and determine at his peril, if within the principles of any decision his tax title, is void. . . . The state holds out an inducement to purchasers at such tax sales and payment of subsequent taxes that there shall be acquired a title to such land, and the right to receive back the money paid and interest, should the tax title be declared void.”

And cannot it be said here that the holder of a title conveyed by the state might well be ignorant of any infirmity in the title and indeed might he ignorant .of the fact that the paramount title was outstanding in the United States? The state assumes to convey a good title to its citizens — perhaps in many instances not conversant with land titles or the law in reference thereto ; and should not the patentees rest in confidence upon the state’s patent until that patent has been declared void or canceled? Any other view would put the state in the attitude of holding itself out as the owner of lands, of taking the purchase money from the state’s vendees, and then at some remote period of denying the patentee’s right to recover back the purchase money solely because the latter has not sooner attacked his own title. The holder of the state’s patent might be in possession, using and enjoying the premises. Surely he is not expected to trade for the land one minute and sue the state the next.

The case of Brown, Land Commissioner, v. Ford, 112 Miss. 678, 73 So. 722, foreshadows the views now announced. In speaking of the right to sue for recovery of the purchase money, we then said:

“If the auditor should refuse to issue a warrant in payment of the claim thus presented (a decree .of the court canceling the state’s title), then, and not until then, could appellees, under section 4800 of the Code, institute a suit against the state.”

Affirmed.

Cook, J., dissents.