Sistrunk v. Graham , 10 Adv. S. 41 ( 1952 )

Arrington, J.

In May, 1951, Walter E. Sistrunk, and others, appellants, filed an affidavit and declaration in ejectment against appellees-defendants, Robert Graham and wife, Mrs. Genie Graham, in the Circuit Court of Wayne County. The declaration and amendment thereto, by a bill of particulars, deraign title to the 78.56 acres in question. Appellants claim under an oil, gas, and mineral lease from the United States of America to M. J. Peterson, lessee, dated August 1, 1948, with the primary term of five years and so long thereafter as oil or gas is produced in paying quantities. Appellants’ oil and gas lessor, the United States, was not made a party plaintiff or defendant.

Appellees pleaded non-joinder of a necessary and indispensable party, namely, that the United States, which under appellants’ theory owned the lands subject to appellants’ lease, was such a necessary and indispensable party.' Appellees also filed a plea of not guilty and denial of the averments of the declaration. In an amendment by a bill of particulars, appellees pleaded that title to the lands in question had been acquired from the United States “by some person unknown to these defendants prior to the year 1892”; that appellees and their predecessors in title have been in open, notorious, adverse, and continuous possession of the lands, paying-taxes thereon for more than forty years; that under these circumstances it will be presumed that the sovereign has long ago conveyed title to the land to private individuals through whom appellees claim; and that a lost grant will be presumed.

Upon application by appellants for a survey of the lands, the circuit clerk issued a commission to a surveyor, who made a report to the court. That report stated that appellees refused to allow him upon the lands for the purpose of making- the survey. Appellants state in their brief, and appellees do not dispute it, that on the hearing of the plea of non-joinder of a necessary party, appellants advised the court that the United States would not give its consent to be made a party to the suit either as a plaintiff or defendant. The final order from which this appeal is taken sustained appellees plea of nonjoinder by appellants of a necessary party, the United States, and dismissed the action “for want of jurisdiction of the court. ’ ’ Hence the sole issue here is whether the United States is a necessary party to this action of ejectment.

We do not think it is. In State Mineral Lease Commission v. Lawrence, 171 Miss. 442, 157 So. 897 (1934), Lawrence and others brought an action in chancery court, in which they claimed title to certain lands, and made def endants the members of the State Mineral Lease Commission. The bill charged that the commissioners held of record certain deeds which were void and cast clouds upon complainant’s title. The trial court found that Lawrence was the true owner and that the title held in the name of the commissioners for the Commission was invalid. The final decree cancelled that deed. The issue on appeal was whether the court had jurisdiction to entertain the suit. It was argued that a sovereign state and its political subdivisions cannot be sued in the courts except upon the express statutory consent of the state. But the court said that this rule applies only when the state or its subdivisions is actually made a party or “is actually necessary to he made a party in order to furnish the relief demanded by the suit.” Appellants argued that the real or substantial interest in the suit was in the state itself, and that the court could not proceed until all parties whose interests will be substantially affected by the decree have been brought before the court. Replying to this contention, this Court cited an early decision of the United States Supreme Court and held as follows: “But if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.”

Griffith, Mississippi Chancery Practice (2d ed. 1950), Sec. 106, interprets the effect of the Lawrence case as follows: (Hn 1) “The rule as to necessary parties does not apply to parties who are immune from suit, so that although the state’s interest will be affected by suit against its officers, the absence of the state as a party will not prevent the suit.”

The Lawrence case was cited with approval in State v. Sanders, 203 Miss. 475, 35 So. 2d 529, 532-533 (1948). See also 18 Am. Jur., Ejectment, Sec. 72.

In the present case the United States will not consent to join in this suit brought by its oil and g’as lessee, and manifestly can not be sued as a party defendant. Under these circumstances, the quoted principle in the Lawrence case is sound and just both in equity and in law courts. Otherwise, according to appellees’ contention, appellants, assuming they have a valid oil and gas lease, have no remedy, although they have been injured. The rule as to necessary parties does not apply, therefore, to parties who are immune from suit. (Hn 2) The absence of the sovereign as a party should not prevent a suit involving possession or title to property where the party seeking to enforce his rights has an enforceable interest in the land. We decide only that the United States is not under these particular circumstances a necessary party. Any judgment rendered would not be res judicata as to the United States, if it is not a party. We do not consider, on this appeal from an order sustaining a plea of non-joinder of an alleged necessary party, any issues other than that particular one.

Reversed and remanded for further proceedings not inconsistent with this opinion.

McGehee, C. J., and Lee, Kyle, and Ethridge, JJ., concur.