Huber v. Freret , 138 Miss. 238 ( 1925 )

^* Headnote 1. Public Lands, 32 Cyc., p. 1098; 2. Statutes, 36 Cyc., pp. 1111, 1112; 3. Public Lands, 32 Cyc., p. 1097. Appellees Mrs. Maggie Freret and others filed their bill in the chancery court of the first district of Hinds county against appellant, H.A. Huber, by which they sought to remove clouds from and establish title to a lot in the city of Jackson facing south on Capital street forty feet, and running back a certain distance described in the bill. Appellant demurred to the bill, which demurrer was overruled by the court, and an appeal from that decree was granted to appellant.

The history of the pleadings and proceedings had in the cause up to the time of the making of the decree appealed from is rather long and complicated. We do not deem it necessary, however, to set it out, because the turning point in the case may be properly presented without doing so. Unless the patent from the state to appellees to the lot involved of date January 17, 1923, gave appellees title to said lot, they state no ground for relief in their bill. On the other hand, if the patent is valid and includes the lot claimed by appellant, then appellees will be entitled to the relief prayed for.

Appellant attacks this patent from the state on two grounds. One is that under the law the land commissioner had no authority to execute a patent to urban property divided up into lots for business purposes; that his authority under the statute to sell and convey public lands belonging to the state is confined to rural lands used or capable of being used for purposes of agriculture, pasturing or for their timber, such lands as are ordinarily bought and sold by the acre. Another is that the consideration recited in the patent being only one dollar the conveyance was voluntary, and amounted to a donation of public land in violation of section 95 of the Constitution. We agree with appellant as to the first ground, and therefore put our decision upon that ground, and decline to pass upon the constitutional question which is involved in the second ground. As the patent recites on its face, it was executed and delivered to appellees in pursuance of section 2919, Code of 1906 (section 5254, Hemingway's Code). That section defines first what constitutes public lands belonging to the state. It then provides that:

"The land commissioner may sell any of such lands at the same price as the swamp and overflow lands, subject to be fixed in the same manner and under like regulations."

Then follows the provision authorizing the land commissioner in his discretion to rent public lands where improved or tillable. Turning to section 2912, Code of 1906 (Hemingway's Code, section 5247), we find the minimum price at which swamp and overflowed lands belonging to the state are subject to sale, one dollar and twenty-five cents per acre, and the regulations governing the sale of such lands. We know of no other statute under which it can be claimed with any degree of reason that the patent here involved was authorized. We have no statute which applies in terms to urban property divided up into business lots. If there was any authority of law, therefore, for the issuance of this patent, it was section 2919, Code of 1906 (section 5254, Hemingway's Code), which statute is referred to in the patent itself as the authority for its issuance. It must be admitted that the language used in the statute defining what constitutes public lands belonging to the state is broad enough to cover urban business property. But taking its context, and especially construing that section in connection with the other section of the statute mentioned, section 2912, Code of 1906 (section 5247, Hemingway's Code), and also in connection with the entire scheme and purpose of our legislation in reference to public lands, as evidenced by the chapter in the Code on the subject, we are of opinion that it was not the purpose of the legislature to deal with urban business property surveyed and divided into blocks and lots; that it was the purpose of the legislature to deal alone with those public lands which are usually bought and sold by acreage in other words, property commonly known as rural lands, lands valuable for their timber or pasturage or for agriculture. It is true in order to so hold we must go beyond the strict letter of the statute. But that is justified in a proper case, and we think this is a case of that character.

This court has often held that, where the meaning of a statute is ambiguous, resort may be had to the real purpose and intention of the legislature in adopting the statute, which when ascertained the court will give effect thereto even though the letter of the statute is violated. Kennington v. Hemingway,101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B, 392; Learned v. Corley, 43 Miss. 687; Bonds v. Greer,56 Miss. 710; Adams v. Y. M.V.R. Co., 75 Miss. 275, 22 So. 824; Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844. And furthermore, this court has held that, in construing a statute, unjust and unwise purposes will not be imputed to the legislature when a reasonable construction will save the statute from such imputation. Dunn v. Clingham, 93 Miss. 310, 47 So. 503. It seems plain that the language of this statute as applied to urban property is ambiguous. Applying those principles here we think inevitably leads to the conclusion that the legislature has not so far authorized the land commissioner to sell urban lands divided into lots and having a value for business purposes. The two provisions of the statute relied on provide for a minimum price "per acre," and the fixing of a price above that by the Governor and the land commissioner when they deem the land to be worth more than the minimum. It is a matter of common knowledge of which the court will take judicial notice that urban business property is not ordinarily sold by the acre at a price of so much per acre, but is sold in lots and blocks and parts of lots and blocks described by metes and bounds in feet and inches; and that such property, located in a thriving municipality on one of its main business thoroughfares, is worth very largely more than rural timber, agricultural or pasture lands. To authorize the valuation and sale of such lands under the same regulations as govern the valuation and sale of rural timbered, agricultural or pasture lands we think would be unwise and unreasonable. We hold, therefore, that there was no authority of law for the execution of the patent involved in this case.

It is true that this is a collateral and not a direct attack on the patent in question, and it is also true that a patent cannot be attacked unless void. Gastrell v. Phillips, 64 Miss. 473, 1 So. 729. Nevertheless, where the land commissioner had no authority of law to execute the patent, the attack may be made collaterally. 22 R.C.L., p. 342, section 89; Dixon v. Doe exdem. Porter, 23 Miss. 84; Hit-tuk-ho-mi v. Watts, 7 Smedes M. 363, 45 Am. Dec. 308. The patent here involved comes within the latter principle. It is void. The land commissioner had no authority of law to convey the lot in question. He lacked entirely the power.

Reversed and remanded.