Clements v. Anderson

Simrall, J.: The land in dispute is parcel of the five hundred thousand acres, granted to this state, by the act of congress of September, 1850, for purposes of internal improvement. The respective parties claim under conflicting patents; one issued to Joshua Green, in 1853, and the other to Calvin Clements, in 1869. The patent to Clements was issued under the act of 16th March, 1862, by which, among other things, the secretary of state was authorized to issue scrip for swamp lands in the different counties in which they lie to commissioners appointed for that purpose. Clements became regularly the holder of a piece of the scrip, which was located upon the quarter section sued for, and in redemption of which his patent was granted. The patent to Green was issued under the statute of 15th March, 1852, which directed the secretary of state to issue on and before the third Monday in July of that year, to the presidents of the boards of police of the counties of De Soto, Tunica, Coahoma, Bolivar, Washington, and Issaquena, six hundred thousand acres of land scrip. Joshua Green became the owner of “Tunica County Scrip,” which was located on the same land, for which a patent issued to him. The laws of the 15th and 16th of March, 1852, under which these grants were made, were construed in the case of Jackson v. Dilworth, 37 Miss. 773. The act of the 15th of March, under which Green made his location, was held to confine the purchasers of the scrip to a location upon lands in the counties therein designated. In effect the act granted six hundred thousand acres, in the counties bordering on the Mississippi river, for the purpose of — 597 — constructing a levee; the scrip for which in appropriate subdivisions should be sold, and located by the purchaser, or his assigns, upon lands granted to the counties. It was further held, that the act of the 16th of March appropriated the swamp lands embraced in the district therein described, and wdiich included the county of Attala, to the respective counties in which the lands are situated; that thereby the counties acquired á vested right which could not be withdrawn, without their consent ; and that, although such consent might be given, it could not impair the right of the hoider of scrip previously purchased. It followed, therefore, from these premises, and was so announced, that the holder of scrip, issued by one of the counties in the Creek district, had no warrant to locate in a county included in the district, as defined in the act of 16th March, and that, although such location might be approved by the secretary of state, and consummated by a patent, the patent was illegal and invalid, and conferred no title; but that the land was still open to be taken up.by scrip issued by the authorities of the county in which the land was situated. But it is insisted, for the defendants, that, although their title may have been invalid in its inception in Green, their vendor, yet, entering under their deed from him, their possession was under color of right, and they are therefore entitled to the bar, tolling the plaintiif’s right of entry. The maxim of the common law, '■’■nullum tempus occur rib regi,” has been incorporated into our jurisprudence. In England, when an act of parliament is made for the advancement of justice, to prevent injury and injustice, the king shall be bound, though not specifically named therein. But where the statute is general, and any prerogative right, title or interest is taken from the king, then he shall not be bound, unless by express words the statute is made to include him. Bacon’s Abr., 559, Prerogative. The old authors say that the king shall not be a sufferer by the negligence, the contracts, or the combinations of his officers. Therefore, he is — 598 — not concluded by any statute of limitations, unless expressly by words it is made to extend to Mm. The king is the per-Bonification of sovereign power. In analogy to the reason and policy of the principle, it should be extended in America tó those organisms of government which have the attributes of. sovereignty, as the United States and the several states,, and not to those local bodies, such as cities and counties, which are derivatives and emanations from the sovereign, created for the purposes of local convenience, subject at all times to be changed and modified at the pleasure of the.' government. In Armstrong v. Dalton, 4 Dev. (N. C.) 569, it was declared that the principle had no application to a county, or to officers who sue on its behalf. So, also, in county of St. Charles v. Powell, 22 Mo. 525, and Callaway County v. Nolly, 31 ib. 397. In Lessees of Cincinnati v. Presbyterian Church, 3 Ohio, 309, it was held that the city of Cincinnati, a municipal corporation, was not embraced. Kemp v. Commonwealth, 1 H. & M. 84; Johnston v. Irwin, 3 S. & R. 291; Allston v. Saunders, 1 Bay, 30; United States v. Kirkpatrick, 9 Wheat. 735, confine the doctrine to the state or the government. ' This presents the question, whether the lands, of which the tract nr controversy is parcel, were the property in fee of the county of Attala, by grant from the state, or whether the state was the proprietor. To determine that question, the entire legislation on the subject, its policy and reason, as well as the text must be looked to. It is familiar learning that general words, in a statute, may be limited by other, restrictive ones, or by other provisions making it impossible or inconsistent to give to the general words their ordinary signification. The entire statute must be so read, as that the whole may have a harmonious and consistent operation. ■ 1 The title Of the act under which the plaintiff derived his patent is declaratory of its policy, “The reclamation .of the swamps and overflowed lands, and for the improvement of the navigation of the various rivers and streams of — 599 — this.state.” We should expect to find in the provisions of the law, the development of a plan for that object. The general idea is put forth in tbe first section, by devoting the lands east of the base of the hills bordering the bottoms of the Yazoo and Tallahatchie rivers (embraced in the grant by congress by act of 28th Sept. 1850), to reclamation from overflow, and to the improvement of the navigation of the rivers, and for that purpose are granted to the counties respectively ■— granted on the terms thereinafter mentioned; granted in such wise as to make them available for the object indicated. This is the mode of it: The secretary of state was, by the fourth section, to issue scrip for sections and its subdivisions to commissioners, who should sell the same; the purchaser or his assigns could locate this scrip upon any of the designated lands, indorsing the selection made upon the back of the scrip, and, upon a presentment of the scrip, thus indorsed to the secretary of state, who was directed forthwith to issue a patent. It is manifest from this brief synopsis of the statute, that the general words in the first section did not impart a grant of the fee to the several counties. The title was retained by the state. The commissioners appointed by the county authorities, under the second section, were the agents to make sale of the scrip, to receive the money, and, upon producing evidence of a purchase and location to the secretary of state, the patent emanated, which divested the state of the title. The grant then to the counties was not the land itself but the money arising from the sales, to be expended by them in the reclamation of submerged lands, and the improvement of the navigation of the streams. As the statutes of limitation do not run against the state, adverse possession, however open and notorious the occupancy, confers no benefit either to toll the right of entry or confer a title. A notable instance is presented in Jackson v. Vail, 7 Wend. 125. In 1820 a patent was granted by the legislature of New York to a revolutionary officer, to take effect as if it had issued in 1790. A possession under claim — 600 — of title for thirty-five years could not be set up to bar the title of the heirs of the patentee. No time, under the plea of thé statute of limitations, prior to 1820, when the state divested herself of the title, could be estimated under the plea, for it was only from the date of the grant that the statute began to run. So, also, in Wilson v. Hudson, 8 Yerg. 898; Thomas v. Hatch, 3 Sumn. 170; Jordan v. Barrett, 4 How. (U. S.) 169; Chiles v. Calk, 4 Bibb. (Ky.) 544. The fundamental idea, underlying the titles to lands in the United States is, that the state, if one of the ‘ ‘ old thirteen,” is seized of all the lands within her limits not granted, and as to the new states and territories, the seizin is in the United States to the like extent. The principle in all its force applies to the grant made to this' state by the act of 28th September, 1850, as to which she could not be disseized, unless, by express statute, the state chose to renounce her prerogative, and consented to put herself on the same footing as individuals in respect to the statute of limitations. This was done by the 25th art of the Code of 1857, p. 402; prior to that enactment, nullum tempus occurrit república}. It follows, therefore, that the occupancy of the locus in quo by the defendants, from 1855 to November, 1857, does not avail them under their plea. Computing from the latter period to the date of instituting this suit, and deducting the suspension during the war, the law did not attach. But it is said that Green’s patent, being on its face older than Clement’s, must prevail in a court of law, until set aside by direct proceedings in chancery, or upon quo warranto. If the patent may be vitiated for matter de Jiors, to be averred and proved, chancery is the proper forum for the litigation. But if that appears on its face which makes it invalid and inoperative, then the fact is as if “found,” and it is a question of law as to its validity. If the patent is “void” and that which renders it so is written on its face, it is quite as competent for a court of law as for a court of equity so to pronounce, as if the land — 601 — for which it was issued had already been appropriated. As where the title passed by grant contained in terms in an act of congress, and a patent was issued to part of it by the ministerial officers of the government, under the general law for the sale and disposition of public lands. Grignon’s Lessee v. Astor, 2 How. (U. S.) 344; Stoddard v. Chambers, ib. 317; Indian v. Watts, 7 Smedes & Marsh. 365. It is quite well settled by authority that, if the government had no title, or its officers had no authority to issue the grant, the question may be examined as well at law as in equity. Doe v. Winn, 1 Wheat. 380; Dixon v. Doe ex dem. Porter, 23 Miss. 84. All the facts necessary to pass upon the legality Si Green’s patent is embodied in it. But it is further objected that, inasmuch as the state accepted Green’s money, it is estopped from denying his title and making a subsequent grant. It may be responded that the lands of which the locus in quo is part, were created a fund for certain purposes, to be administered by the counties by a sale of the scrip and use of the money for certain purposes. The'money never went into the treasury for ordinary state purposes, nor was it subject to the appropriation or control of the state. Moreover, this point was necessarily involved in Jackson v. Dilworth, and is concluded by the judgment in that case. There, the patentee had paid his money to the commissioners of Tunica county,, for the scrip, and had. made a location in Attala, for which a patent emanated, yet his patent was declared void These views made it unnecessary to consider the objections to the evidence offered or the instructions granted and refused. Judgment reversed and a venire facias awarded.