Lyebrook v. Hall

Whitfield, J., delivered the opinion of the court. It might be sufficient to say as to the sale on May 10, 1875, under the abatement act, that the amended bill avers that the .lands were not delinquent for any year prior to 1874, and hence not of the class of lands subject to sale under that act; and that the answer to the amended bill does not deny this, and there is absolutely no proof on the subject in the record. There would, in that view, have been no valid sale under that act. But if the sale had been valid, the purchase on March 15, 1878, by Z. T. Cason, under the facts of record, operated a redemption. His said purchase having, when made, the character of a redemption, that character was not changed by what subsequently occurred. The argument that, though he was a trustee ex maleficio as to Mrs. Wilson, her abandonment of the land, because she ascertained that she had acquired by her conveyance in 1871 from Mrs. Burgess, the dowress, only the dower interest, operated to make what had been a redemption when made, a purchase by Z.° T. Cason, so as to constitute him thereafter owner, asserting adverse ownership thereunder, both as to Mrs. Wilson, Mrs. Burgess, and complainant, the owner then of the fee simple reversion in said lands, is not sound. Z. T. Cason entered under Mrs. Wilson as his landlord, under a lease running from January 1, 1877, to January 1, 1880, and, while so in possession, received the rents and profits, and was under the duty, by contract with Mrs. Wilson, to redeem the lands from the state. He remained in possession till his death, in 1882, never having surrendered the possession, and never, so far as Mrs. Burgess or complainant, her daughter, was concerned, having brought home to them any notice of his claim to own the land under the deed of March 15, 1878. At the death of Mrs. Burgess, in 1879, he became the tenant at sufferance of complainant, and could neither set up such tax title nor hold adversely to her. He was estopped, by his relation to the land, under his tenancy and possession and contract, to buy in and set up such tax [514] title, under the facts shown by the record. McGehee v. Holmes, 63 Miss., 50; Black on Tax Titles, §145; Rives v. Nesmith, 64 Miss., pp. 815, 816; Day v. Cochran, 24 Miss., 261. So far as appellants claim under this tax title, they do so as heirs of Z. T. Cason, at Z. T. Cason’s death. His brother, J. J. Cason, entered into possession confessedly as his heir. Having no deed from him, and there being other heirs, and not wishing any administration on Z. T. Cason’s estate, J. J. Cason allowed the lands — though in possession and receiving rents and profits —to be sold for taxes, with the purpose of acquiring such tax title, and claiming under it, while also claiming under the tax title of Z. T. Cason of date March 15, 1878, of which purpose Mrs. Cason was aware, setting it out in full in her answer to the amended bill. Mrs. Burgess had died in 1879, and the complainant had then, at about eighteen years of age, become the owner in fee simple of the lands. J. J. Cason, however, died before consummating this scheme, in 1885, and his wife, one of the appellants, then entered into possession. One Fugate having, as is alleged, bought from the state the lands alleged to have been sold in 1882 to the state, made a conveyance of them to Mrs. Lyebrook, then Mrs. J. J. Cason, who, at the time she so received such deed, was in possession, claiming, with her son, the other appellant, as heirs of her husband, and, under him, as heirs of Z. T. Cason, under his claim above set forth. Her purchase, in her situation, was a mere redemption. It was her duty to pay the taxes. Besides, she, as well as Z. T. Cason and J. J. Cason, were tenants at sufferance to complainant. No question of right to hold against complainant by adverse ownership, on the theory that notice of such claim had been brought home to her, if tenable (possession never having been surrendered), is involved, for, from the time when complainant was a very young child until the filing of her bill, March 10, 1892, this very obscure and imperfect record furnishes no hint of her existence even, except as to her leasing in December, 1891. It [515] follows that, if Fugate had the state’s title, the appellants took nothing under it, and this renders immaterial any consideration of the sufficiency of the testimony offered to establish the contents of that alleged deed. In our view, therefore, none of the parties — Z. T. Cason, J. J. Cason nor Mrs. Cason — under the facts, acquired a valid tax title, and were all, after the death of Mrs. Burgess, the dowress, tenants at sufferance of Mrs. Hall, against whom they could assert no adverse possession, under the facts of this case, nor set up the statutes of limitations, embraced in § 539, code of 1880, or others claimed under. The cases cited by counsel for appellants (Chiles v. Gallagher, 67 Miss., 422; Joor v. Williams, 38 Miss., 546, and Brockett v. Richardson, 61 Miss., 766) are inapplicable. Counsel for appellee misconceives Foster v. Canning Co., 71 Miss., 624. The opinion in that case must be applied to the case made by that record. It does not decide that, where the true owner files a bill to remove, clouds, he must do so within ten years after his right to sue, when there is no adverse possession. When one has had adverse possession for the. time necessary to invest him with title (ten years), of course the other party cannot sue in ejectment, or file a bill to remove clouds. But the true owner, where there has been no such adverse possession, is not barred by the ten years statute. As there has been in this case no adverse possession, the bill is maintainable, and that, too, without reference to the testimony as to the complainant’s claim of re-entry within the ten years after coming of age. Affirmed.