Burroughs Land Co. v. Murphy

Cook, J., delivered the opinion of the court. The appellee, Solomon Murphy, filed a bill of complaint in the chancery court of Sunflower county against the Burroughs Land Company, a foreign corporation, and the heirs of It. O. Smith, deceased, seeking to cancel an alleged tax title of the Smith heirs to certain land in controversy; and, in the event of failure so to do, to recover on the warranty of the Burroughs Land Company, appellee’s immediate vendor. In the original bill, appellee deraigned his title substantially as follows: A patent from the United States to the state of Mississippi; a patent from the state of Mississippi to Henry and Lawson; a tax sale to the liquidating levee board, dated May 12, 1870; a deed from the state of Mississippi to N. T. Burroughs, dated July 31, 1885, and mesne conveyances from N. T. Burroughs to the Burroughs Land Company and a warranty deed from the Burroughs-Land Company to the complainant, dated November 26, 1913. Concurrently with the execution of this deed, the appellee executed a deed of trust on said land, to secure the deferred payments of the purchase money, in v7hich there appeared the following provision: — 537 — • “During the continuance of this trust I agree to pay all taxes, special assessments, or other liens of like character that may be levied or assessed against the i*eal property herein conveyed, as the same becomes due.” The Smith heirs answered the bill and set up a tax deed to R. O. Smith, conveying said land to him, dated April 6, 1911, and averred that they inherited the- land from the said R. O. Smith. On July 5, 1920, an answer was filed by the Burroughs Land Company in which no objection was raised to its being sued on its Avarranty, and averring that, under the provisions of the deed of trust executed in its favor by complainant, it was the duty of complainant to have paid the taxes for the year 1913 and thereby avoided the sale under which the Smith heirs claimed. While this court was pending, the deed of trust from appellee to the Burroughs Land Company was foreclosed, and on November 27, 1920, the trustee conveyed said land to N. A. Phipps, the secretary of said land company. Thereafter, the relation of vendor and vendee having been severed by this foreclosure, and conceiving that the title to said land Avas in the state of Mississippi by virtue of the tax sale made to the liquidating levee board on May 12, 1870, the appellee obtained a patent to said land from the state of Mississippi, dated December 18, 1920, and for which he paid the sum of fifty dollars. Subsequently, on December 22, 1920, an order was obtained permitting the complainant -to file a supplemental bill, and on April 21, 1921, the complainant filed a supplemental bill in which he deraigned his title substantially as in the original bill, except he omitted all reference to the deed from the state of Mississippi to N. T. Burroughs, dated July 31, 1885, and he set up the title acquired by him from the state of Mississippi on December 18, 1920. The Burroughs Land Company did not demur or plead in abatement, but on the 12th of October, 1921, it filed its answer, not sworn to, in which the only objection interposed to its being sued on its Avarranty, or to the filing of — 538 — the supplemental hill setting up a title acquired after the original hill was filed, is contained in the following averment :' “Defendant would further show that the complainant is undertaking to obtain a judgment or decree against it on an alternative prayer before the claim of the defendants Smith is settled and adjudicated by this court, and that the defendant. Burroughs Land Company is a nonresident corporation, and has no interest gn this suit, and should not, at this time, be made a party to the same. Wherefore, the defendant the Burroughs Land Company, by way of abating this suit against it, hereby enters its plea in abatement to the same, for the reasons above given.” On the final hearing, it was agreed that the complainant had paid to the defendant Burroughs Land Company, on the purchase price qf the land in controversy, the sum of three hundred twelve dollars and fifty cents, and a final decree was entered holding that the complainant acquired no title whatever by virtue of the deed from the Burroughs Land Company, for the reason, among others, that the deed from S. Gwin, state auditor, to N. T. Burroughs failed to show that the provisions of sections 5G1 and 562 of the Code of 1880 had been complied with; This decree further canceled the claims of all the defendants to said land, confirmed the title acquired by complainant by virtue of the patent from the state of Mississippi, dated December 18, 1920, and awarded the complainant a decree against the Burroughs Land Company, for breach of its warranty, for the sum of three hundred twelve dollars and fifty cents, and from this decree this land company prosecuted this appeal. In view of the pleadings and the course of the trial in the court below, the only real question presented on this appeal is the liability of the appellant on its warranty contained in the deed executed to the appellee, and the first contention made by counsel for appellant is that there is nothing in this record, either in the pleadings or evidence, — 539 — to show that the state of Mississippi ever acquired title to the land; and, since the state of Mississippi never acquired the title which had been vested in the liquidating levee board by virtue of the tax sale of May 12, 1870, there had been no eviction of appellee from the land, and consequently this suit for a breach of appellant’s warranty of title cannot be maintained. The original and supplemental bills alleged that the title passed from the liquidating levee hoard to the state by operation of law, and the answer of appellant admitted that allegation, but counsel now contends that this “was simply a legal deduction — a misconception of the law — and not a statement of fact.” On December 2,1858, a statute was enacted by the legislature by which there was created and established a general scheme for protecting the alluvial lands of certain counties of the state, and by which there was created the general levee board, Avhich Avas required to assume the indebtedness of the several local leA'ee boards of the counties composing the distinct. To effectuate this scheme, this general levee board was authorized to issue scrip; a direct tax Avas levied on the land in the distinct, and provision ivas made for the collection of this tax. Prior to 1867 this general levee board had assumed and incurred large debts and liabilities, and on February 13, 1867, an act Avas passed by the legislature creating the liquidating levee board for the purpose of liquidating all outstanding liabilities of the general levee board. Laivs of 1867, p. 237. This act imposed a direct tax on the lands of the district, provided for the appointment of a board of commissioners, and also provided an elaborate scheme for refunding and liquidating the outstanding liabilities of the general board. On November 27,1865 (Laws 1865, chapter 1) a,n act was passed by the legislature creating the board of levee commissioners for Bolivar, Washington, and Issaquena counties, generally knoAvn as the ten-cent levee board, and on March 17, 1871 (Laws 1871, chapter 1) afi act was passed — 540 — creating the levee hoard of the state of Mississippi district No. 1, having jurisdiction over the counties of Tunica, Coahoma, Tallahatchie, Panola, and Desoto. Under the provisions'of the acts creating each of theáe boards, taxes wep levied on the lands of therespective districts, and provision was made for the collection of these taxes by sale of the lands and by conveyances to the respective boards, in default of purchaser. By an act approved May 13, 1871 (Laws 1871, chapter 2) the board of liquidating levee commissioners ivas abolished, and in its stead was substituted — “a commissioner to be styled ‘a commissioner to liquidate certain outstanding liabilities incurred for levee purposes prior to the first of January, 1862/ who shall hold his office for the term of two years, and until his successor is qualified, and shall be subject to removal, as in said act provided,” etc. On April 11, 1876, the legislature enacted chapter 105, Laws of 1876, providing for the abolishment of the office of liquidating levee commissioner, and for the redemption of lands in the liquidating levee district. Under the provisions of this act, the office of liquidating levee commissioner was abolished, and the auditor of public accounts and the state treasurer were substituted as levee commissioners, and provision was made for the redemption at any time prior to the 1st day of November, 1876, of all lands formerly acquired by the “ten-cent levee board,” the “levee board of the state of Mississippi, district No. 1,” and the “liquidating levee board.” After providing for the redemption of these lands at any time prior to the 1st day of November, 1876, it was provided by section 7 of this act: “That after the first day of November, 1876, and before the first day of January, 1878, the auditor may sell and dispose of such lands, to any persons desiring to purchase the same, on the same terms as are provided for the redemption thereof in the sixth section of this act,” etc. — 541 — By section 13 of this act of 1876 it is provided: “That if any of the lands mentioned in this act shall not be redeemed or purchased as herein provided for, on or before the first day of January, 1878, no further time for redemption shall be allowed, and the title thereto shall be vested in the state of Mississippi, and no action in law or equity shall be maintained, in any court of this state, either against the state of Mississippi or any grantee or donee from the state of Mississippi for the recovery of such lands,” etc. This act of April 11, 1876, hafe been considered by this court several times, and in the case of Shotwell v. Railroad Co., 69 Miss. 541, 11 So. 455, it was expressly decided that the title to the lands formerly acquired and held by the levee board of the state of Mississippi, district No. 1, was vested in the state by this act, the court there saying: “From all this, it is apparent that the provision for’ vesting the lands purchased for taxes in the board was simply as a means to secure the ‘charges and assessments’ imposed by the eighth section of the act, which constituted a ‘trust fund’ for creditors. That could not be impaired; but it was competent for the state to change the officials to administer the trust, and to divest the title of the lands as to the levee board and vest it in itself, in the way in which it was done by the thirteenth section of the act of April 11, 1876, cited above.” Later this court; in the case of Railroad Co. v. Buford, 73 Miss. 494, 19 So. 584, had before it the question as to whether the title of the ten-cent levee board — that is to say the “board of levee commissioners for Bolivar, Washington, and Issaquena counties” — became vested in the state by virtue of the act of 1876, and the court there said: “The sale on the 15th of April, 1867, vested the title in the ten-cent levee board, and the alleged sales thereafter to the liquidating levee commissioners, and to the state in 1872, were void (Shotwell v. Railroad Co., 69 Miss. 541), and, under the provision of the act of April 11, 1876 (Laws — 542 — of 1876, p. 166), this title was vested in the state (Shotwell v. Railroad Co., supra).” The provisions of the act of April 11, 1876, with reference to the lands formerly acquired by these three boards are the same, and the language of the court in the cases of Shotwell v. Railroad Co., supra, and Railroad Co. v. Buford, supra, holding that the lands of the ten-cent levee board and the No. 1 board were vested in the state under the provisions of this act, applies with equal force to the lands formerly held by the liquidating levee board, and we are clearly of the opinion that the title to the land here in question, ivhich ivas vested in the liquidating levee board by the sale of May 10, 1870, was subsequently vested in the state of Mississippi by the act of April 11, 1876. The next question presented for! consideration is whether N. T. Burroughs acquired the state’s title by virtue of the alleged deed to him from S. Gwin, auditor, dated July 81, 1885. This deed was executed under the provisions of section 562 of the Code of 1880, which reads as follows: “The auditor shall make a statement on each conveyance so made by him, of the amount of state taxes, and damages thereon, and of the amount of county taxes and damages thereon, and of any other taxes and damages thereon, and the amount of his fee and commissions, in the transaction, and shall present such conveyance, thus prepared, to the state treasurer, who shall enter in a well bound book, to .be kept as a record of his office, the description in the conveyance of the land conveyed and the name of the grantee, and the amount of state and county or other taxes and damages, and the fees and commissions of the auditor, as stated on said conveyance; and said treasurer shall mark such conveyance ‘registered’ and subscribe such marking with his official signature and seal, and return such conveyance to .the auditor, and such conveyance shall not be valid unless it has been dealt with as herein required.” — 543 — The deed from S. Gwin, auditor., which was objected to ■when offered in evidence, does not contain the essential indorsements required by this section to give it validity, and, since this deed ivas void, the appellant had no title to convey at the time it executed its warranty of title. That a deed executed under the provisions of section 562 of the Code of 1880, and which does not contain the indorsements required by the section, is void was expressly decided in McLemore et al. v. Anderson, 92 Miss. 42, 43 So. 878, where the court said: “It nevertheless clearly appears that the auditor’s deed in this case, whether it be the original deed or a certified copy, did not Contain the essential indorsements required specifically and expressly by section 562 of the Code of 1880. The failure of such deed to show these indorsements, by the express terms of the statute, made the auditor’s deed absolutely void. This error is so fundamental, resulting directly from the express and positive provision of the statute law, that we do not think the failure to object to it in the court below material, and the objection can be made here for the first time. The objection is not one which goes to mere irregularity.- It is one which cuts up by the roots the foundation of appellees’ title, as being made absolutely null and void by the statute law. This court has no power to render nugatory any positive declaration of the statute (section 562 of the Code of 1880) that a deed like this shall be absolutely void.” It is next contended that, as against appellant, the suit was premature inasmuch as it sought relief on the warranty, only in the event that the court should decree the tax title of the Smith heirs to be valid; and further that the supplemental bill was based upon an entirely new title — the title acquired from the state by appellee December IS, 1920 — which was some time after the original bill was filed. These objections were not presented in any proper manner in the court below, but are raised for the first tim'e in — 544 — this court by counsel, who was not connected with the cause in the court below. The only objection made in the court below that the suit was prematurely brought, as against the appellant, is found in a paragraph of' appellant’s answer which is denominated a plea in abatement, but neither this alleged plea in abatement nor the answer of Avhich it was a part was sworn to, and, as said in Beck v. Beck, 36 Miss. 72: “As to the plea in abatement, it is laid down that the same strictness is applicable to such pleas in chancery, as at common laAV. Story Eq. PL, section 723. Testing the plea in this case by the rules of the common laAY, it is insufficient in at least two . . . respects : First, it is not sworn to. 1 Chitty Pl. 496.” In addition, since appellant proceeded to trial on the merits on the bill and answer without presenting this alleged plea and securing a ruling thereon in the court below, it must be considered as having been waived. We think it is apparent from the record and the course of the trial in the court beloAV that it Avas the intention of the attorneys for all parties to settle the rights of all parties in this one suit, and — “This court should in every instance AA'here it can possibly be done, confine its action to a revieAY of the case as it was tried below, and should never tolerate objections made- here for the first time, if they Avere such as could have been waived by the agreement of the parties, either express or implied from their conduct on the trial before the jury, or otherwise.” Binns v. Stokes, 27 Miss. 239. Finally it is contended that, since appellee only expended the sum of fifty dollars to acquire the paramount title, this is the measure of his relief, and consequently that the decree awarding him the amount which he had paid appellant for the land was erroneous. Where a vendee is in possession under the title' convfeyed by the vendor, and the relation of vendor and vendee still exists, the measure of damages for a breach of warranty — 545 — is the amount which the vendee has been or will be forced to expend to protect his possession and perfect his title, not in excess of the amount of the purchase price and interest, but at the time this appellee acquired the title from the state he was not in possession of the land under appellant’s warranty of title. Prior to the time appellee acquired. the state’s title, whatever title he had formerly acquired from appellant had been divested by virtue of the sale under the deed of trust and the relation of vendor and vendee had been severed, and the appellee was then under no obligation to diminish the damage that would accrue from a breach of the warranty by purchasing the outstanding title, and the purchase of this outstanding title did not inure to the benefit of appellant on its warranty. Under the circumstances, the decree of the court below allowing the appellee to recover the amount which he had paid to appellant for a void title was correct, and the decree will be affirmed. Affirmed.