Ellis v. Sutton , 126 Miss. 102 ( 1921 )

Anderson, J.,

delivered the opinion of the court.'

This is a bill in chancery by the appellant, Ellis, against the appellees, Mack Sutton and John P. Sutton, and their tenants on certain lands in Lawrence county described in the bill, the title to which land appellant owned, alleging that the crops raised on said land by the appellees, the Suttons and their tenants, the other appellees, during 1919, belonged to appellant, and were by the appellees, who were insolvent, being harvested and sold, and that they would make way with the proceed^ thereof, thereby defeating the right of appellant to said crops, if not restrained by injunction which was prayed for. Accordingly an injunction was issued and served on the appellees, which later was dissolved on their motion. The appellees, the Suttons, alone answered the bill. It is not deemed necessary to set out further the substance of the pleadings in view of the fact that the cause was tried on an agreed state of facts which were within the issues raised by the pleadings. The facts are as follows:

On the application of the appellees, the Suttons, the government had this land surveyed and platted; and after-wards, on December 1, 1917, one of them, Mack Sutton, filed a homestead application for part of the land, one hundred twenty-six and sixty-eight hundredths acres, and the other, John P. Sutton, on the same date, filed a like application for one hundred eight and fourteen hundredths acres, being the balance of- the tract.

The next most important step in the history of this controversy took place when Congress passed an act for the relief of appellant, which was approved March 4, 1919, Avhich, leaving off the formal parts, is as follows:

“That I, N. Ellis be permitted to purchase from the United States at the price of one dollar and twenty-five cents per acre lots 6 and 7 of section 3, and lots 4, 5, 6. 7, 8, 9, 10, and 11 of section 10, tOAvnship 8 North, range 21 West, of the Saint Stephens Meridian survey, in Lawrence county, Mississippi, containing 234 82-100 acres: Provided, that nothing herein contained shall be so construed as to deprive Mack and John P. Sutton of any rights that they may have under their pending applications, to make entry of portions of said lands under the Homestead Laws: Provided further, that applications for the purchase must be filed within six months from the passage of this act.”

Thereupon the appellant and the appellees, the Suttons,' first fought out their respective claims to this land before the Commissioner of the General Land Office, and appellant lost. Ellis, the appellant, then appealed the cause to the Secretary of the Interior, who rendered a decision, in Avriting, reversing the Commissioner of the General Land Office, in which, after reviewing the evidence as to the claims of the respective parties, he concluded in this language:

“In the year of 1906 this land with other adjacent lapds Avas sold to I. N. Ellis, the present claimant, in settlement of the estate of Youngblood. Since that date Ellis'has been in the open, notorious, and undisputed possession of the said lands, using and improving it and paying taxes upon it. For several years the Sutton applicants have rented the lands from Ellis, and have used it for farming purposes. Correspondence in the records clearly shows that the Suttons did not claim right of possession, but recognized the claim of Ellis and paid rent money to him and submitted bills to him for payment, when any repairs or improvements were made. •

“As above stated the applications of the Suttons to make entry, filed prior to the official filing of the plat of survey, were of no effect, and no equities appear in their behalf comparable to the equities of Ellis who purchased the land many years ago. Therefore the applications and claims of the Suttons are rejected, and Ellis will be allowed to purphase the lands under the terms of the said act of Congress.

“The decision appealed from is accordingly reversed.”

Accordingly there was then issued to appellant a certificate of entry and patent to the land under date of September 8, 1919, which patent was duly recorded in Lawrence county. Thereupon the appellant, conceiving himself to he the true owner of the land from September 8, 1919, by virtue of said certificate of entry and patent, went upon it and demanded of appellees a reasonable rent for the land for the years 1918 and 1919, two hundred dollars a year, the amount they had been paying before, or the entire crops then on the land, if appellees refused to recognize appellant as their landlord for said years. Appellees refused to accede to the demands of appellant, and the latter then filed the bill in this cause.

Appellant expressly set out in his bill that as to the tenants under the appellees, the Suttons, he made no claim to their three-fourths interest in the props produced by them on this land, but insisted that he was at least entitled to the one-fourth interest which they had agreed to pay their said landlords as rent, and this he claimed.

In lieu of the appointment of a receiver to take charge of and harvest the crops which appellant applied for, the court made an order authorizing appellees, the Suttons, to give bond in the sum of five hundred dollars, conditioned to pay whatever decree the court might render against them. Accordingly such a bond was given by them, and they then proceeded to gather and sell the crops on the land, the proceeds of which they retained, at least so far as their one-fourth interest was concerned, which they claimed as landlords of the other appellees, their tenants, and about November 1, 1919, -they surrendered the land to appellant.

On September 8, 1919, when appellant got his certificate of entry and patent to the land, the crops on the land had matured, but were unharvested, with the exception of a small part of the cotton crop. The court below found in its decree that two hundred dollars was a reasonable annual rental for the land, and that, appellees having retained possession of it for two months after the time appellant acquired title from the government, the court rendered a decree in favor of appellant for one-sixth of a full year’s rent, which amounted to thirty-three dollars and thirty-three cents. From this decree appellant prosecutes this appeal.

The question is whether the crops unharvested on this land on September 8, 1919, the date when the title of appellant to the land was acquired from the government, then became the property of appellant, or, as against appellant, the appellees had a better right to such crops. The facts that the appellees, the Suttons, for years prior to' the time this controversy arose between them and the appellant as to the title to this land, were the tenants thereon of appellant, and recognized his title thereto, does not bar them from disputing his title. If land is public land— the title in the government — a tenant is not bound by the ordinary rule which forbids him to dispute his landlord’s title. On the contrary he may show the title to be in the government. It would be against public policy to hold otherwise. Welder v. McComb, 10 Tex. Civ. App. 85, 30 S. W. 822.

Up to September-8, 1919, neither the appellant nor the appellees had any right or title whatever to this land. It was public land; the title was in the United' States, as were all crops grown thereon, and, while public land, no one could acquire any right to plant it to crops and harvest the same. A pre-emptor, .or person filing application to homestead public land, by that step alone acquires no title thereto or right to cultivate it in crops, where his application is denied by the government. The title of the United States carries with it everything growing on or affixed to the land. The doctrine .of emblements has no application except where the sowing of the land was legal. A purchaser of land from the United States gets the crops planted thereon prior to his purchase and standing on the land at the, time his conveyance takes effect. Boyer v. Williams, 5 Mo. 335, 32 Am. Dec. 324; Rasor v. Qualls, 4 Blackford (Ind.), 286, 30 Am. Dec. 658; Wittenbrock v. Wheadon, 128 Cal. 150, 60 Pac. 664, 79 Am. St. Rep. 32; Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374. Prior and up to September 8,1919, the date when appellant acquired title from the United States-to this land, both appellant and appellees, as well as ail others growing crops on the land, were nalied trespassers thereon; and all crops grown on the land by them, belonged to' and were the property of the United States. It follows from these principles that the crops standing on the land on September 8, 1919, when appellant got title, belonged to him.

Under the pleadings in this case, however, appellant is estopped to claim more than one-fourth of the crops, the share the tenants of the appellees, the Suttons, agreed to pay them as rent for the lands for 1919, because appellant in his bill expressly waived any claim to more, and this may have led the tenants, the other appellees, to refrain from answering the bill and contesting the case stated in the bill. Appellant is bound by his solemn pleading.

Reversed and remanded.