Jackson Naval Stores Co. v. Tootle

Maxes, T., delivered the opinion of the court. The timber sold by Tootle was timber located on sixteenth section land, and under the eases of Warren County v. Gans, 80 Miss. 76, 31 South. 539, and Moss Point Lumber Co. v,. Harrison County, 89 Miss. 448, 42 South. 290, 873, this court has held that it was unlawful for any lessee of sixteenth section ■land to sell the timber standing thereon for any commercial purpose. Under these decisions the sale of this timber by Tootle was a nullity, and there was a- breach of the warranty made by him at the very instant it was made. Under the facts shown in the declaration, and as the law now stands in this state, we can see no reason for differentiating this-case from the ease of Pevey v. Jones, in 71 Miss. 647, 16 South. 252, 42 Am. St. Rep. 486. In the above case it was, held that, where a conveyance with warranty was made by any person of lands belonging to the United States, the covenant of warranty was broken the instant it was made, and a right of action accrued the instant of the conveyance. The court assigned as the reason for so holding that “the United States are always seised of their lands, and cannot be disseised as private owners may be; that land belonging to the United States cannot lawfully be the subject of sale and conveyance by individuals, so as to confer any right; that a grantee of such lands by another than the United States cannot take possession without becoming a wrongdoer, and liable to summary ejection, and, therefore, that a covenant of warranty, in a conveyance of land belonging to the United States, must be viewed differently from one where the ownership is by a private person; that the grantee is not required to take possession, or attempt to get it; and that a right of action immediately accrues, to recover for a [492] breach of the warranty, not dependent on any future event, but fixed by the fact of ownership of the land by the government.” We are unable to perceive' any reason why the reasoning of this case is not just as applicable to the state as to the .United States. Xt is quite true that in the- case of Green v. Irving, 54 Miss. 450, 28 Am. Rep. 360, this court said that “a cov-enantee can no more maintain a suit against his covenantor, where he has abandoned in deference to a paramount title residing in the state, which has not been hostilely asserted, than where the owner of the true title is a private individualbut an inspection of that case shows that the decision was rendered at a time when the statute of limitations ran against the state, •and it was possible for the covenantee to acquire a perfect title, as against even the claim of the state, by mere occupancy and lapse of time, just as the covenantee might acquire title 'in the ■same way against an individual. So long as a covenantee remains in undisturbed possession under a title which may mature into a perfect title, there can be said to be no breach of warranty until the hostile claim is asserted; but this cannot be said of a title resting in the state which never can ripen into perfect title. Under the law as it now stands, no limitation runs against the state. Therefore the predicate of the decision in the case oj; Green v. Irving is taken away, and the state is in exactly the same attitude as the United States. If the Naval Stores Company should undertake to cut any of the timber conveyed by this deed, the person cutting or using this timber would be liable to prosecution under section 1378, Code 1906, besides being liable to severe penalties under sections 480 3 and 4986. The demurrer should have been overruled, and because it was not, the judgment is reversed and the cause remanded. Reversed.