Cohn v. Pearl River Lumber Co.

Calhoon, J., delivered the opinion of the' court. Complainant fails to show cause for relief against the land commissioner, who, in fact, was never a proper party to the contention. As to the forty, acres, to which Fox, under whom complainant claims, held no paper title whatever, but claimed by prescription, the county surveyor and some of the witnesses testified to facts showing that for more than fifty years the homestead had been occupied by the Foxes, and that it was on this land. The occupancy of the family residence for that period is not disputed; but there was abundant proof, including the testimony of another surveyor, that the homestead, the old family residence, was not in section 26 at all, but in section 25, on the land not claimed by the Pearl River Lumber Company. Counsel for appellant admits that “the two surveyors are hopelessly at variance as to whether the residence was on this forty.” He insists that “the court should have ordered another survey to ascertain exactly where it was located.” Undertaking to show his superior title, it was incumbent upon the appellant to satisfy the court that the residence was on this forty-acre tract, and, in absence- of such satisfactory showing, the court properly found the facts against complainant’s [659] contention. There was no obligation resting upon the court to order a third survey. As to the other eighty acres, the certificate of sale, dated September 4, 1868, signed by “Hiram Bonner, treasurer of board of commissioners of the eastern district of Pearl Biver,” is not sufficient of itself, and it is not pretended that a patent was issued upon the certificate by the secretary of state, as was required by ch. 34 of the Laws of 1852, providing for the organization of the southern district of Pearl Biver. It appears that there was no authority in law for the organization or existence of an eastern district. It is not shown that there was in point of fact an eastern district organized. Hnder the specific denials of the answer, and especially in view of the trust nature of the holding of these lands by the state and by the commissioners, it devolved upon the complainant to show that the requirement of the statutes, which formed indispensable links in his chain of title, were, at least substantially, complied with. He did not do that. The testimony wholly failed to establish title by prescription. The complainant has no legal demand to have refunded to him the money paid into the state treasury in 1891 for the lands, described in the bill, not claimed by the Pearl Biver Lumber Company. He is not entitled to it, under ch. 73 of the Laws of 1894, because it is not shown that this land had been permitted, through mistake, to be sold to the state for taxes, and purchased afterwards from the state to protect the title. He is not entitled to it, under ch. 46 of the Laws of 1896, because it is not shown, by judgment or decree of any court, that his title had failed. There has been no cancellation of any patent issued by the state. No cause is shown the land commissioner for refunding, as provided by ch. 76 of the Laws of 1900, amended by ch. 74 of the Laws of 1902. It has not been shown that any patent was issued by. the secretary of state upon the certificates of purchase issued by the commissioners of the Pearl Biver district to Chas. H. Fox [660] in 1855, and to W. A. Fox in 1868. Even if the claim to title based upon these certificates, or patents issued thereon, has failed, there is no law authorizing the land commissioner to refund the purchase money because of such failure; on the other hand, ch. 29 of the Laws of 1902 expressly prohibits the use of any of the appropriation therein made to refund money “paid on account of any land obtained, or claim for money paid, under any patent or certificate heretofore issued by any secretary of state of Mississippi.” Affirmed.