Jones v. Gulf Refining Co. , 202 Miss. 705 ( 1947 )

On July 4, 1881, S. Gwin, the Auditor of Public Accounts, executed and delivered to A.B. Jones a forfeited tax land patent to the lands here in question, the grant being of the described land as a "tract of land," there being no words of limitation of the estate granted to the effect that it was an unexpired lease, but the grant was to the grantee and "his heirs and assigns forever." It recited that the land "was sold on the 10th day of May 1875 for the taxes due the State." The Auditor was authorized and empowered to execute the patent under the express provisions of Section 566, Code 1880.

According to the allegations of the bill, the grantee under said patent went at once in the exclusive possession and actual occupancy of the land and he and his successors in title, appellant being the ultimate of such successors, have been in the continuous, actual occupancy of said land claiming the fee-simple title thereto for a period of more than sixty years.

In order that the forfeited tax-land patent shall have been good to convey a fee-simple title, a title of that grade must have passed out of the state into the hands of a private person before January 1, 1874, else it would not have been assessable and subject to the tax sale as a fee-simple title on May 10, 1875. There is no record that the title had so passed out of the State. In favor, however, of a possession of such a long length of years as is here present, a presumption exists that there was such a grant by the sovereign as will support the title of the persons in actual adverse occupancy and claim of title. Caruth v. Gilespie, 109 Miss. 679, 68 So. 927.

We do not apply that general rule here, however, because of what was said in Leflore County v. Bush, 76 Miss. 551, 25 So. 351, but we do apply it under Section 4148, Code 1892, in force since that time and to which we addressed ourselves in the case, Foster v. Jefferson County, 202 Miss. 629, 32 So.2d 126. The presumption which we have mentioned is made applicable by that section, now Section 6596, Code 1942, to sales of sixteenth-section lands for taxes, as was held by Leflore County v. Bush, supra, the appellant and his predecessors in title having been in possession for more than fifty years since 1892. Thus the presumption arises that before January 1, 1874 the sovereign had parted with the fee-simple title, as under the Code of 1871 it could have done, and the presumption is further that it was a fee-simple title, not a lease, inasmuch as the patent aforesaid conveyed a title in fee simple forever and not a lease.

Reversed and remanded.