Jordan v. W. C. Griffin Land Co.

Ethridge, J., delivered the opinion of the court. W. C. Griffin Land Company filed a bill against F. H. Jordan to cancel the claim of F. H. Jordan to the North West quarter of the South East quarter and the South East quarter of the S'outh East quarter of section 7, township 2, N., range 13, W., claiming that the complainant was the owner of the said lands and deraigned its title from the United States of America to the state of Mississippi under the Swamp and Overflowed Land of Congress of the 28th of September, 1850 (U. S. Comp. St. sections 4958-4960), and alleged that the state of Mississippi, by legislative enactment approved March 16, 1852, by an act entitled “An act for the reclamation of swamp and overflowed public lands and for the improvement of the navigation of the various rivers and streams in this-state,” granted said land to the county of Perry in the state of Mississippi; that said act, otherwise known as chapter 14, Laws of 1852, further provided in section 2 thereof that: “The boards of county police shall appoint a commissioner or commissioners not to exceed three in number, to be styled the ‘commissioners of swamp land.’ ” It further sets out the provisions of the said act, and also some of the provisions of chapter 8, Laws 1854, and alleges that in pursuance of said acts the secretary of state issued and delivered to the swamp land commissioners for Perry county land warrants for Perry county Nos. 174 to 200, inclusive, and land warrant No. 173, which had partially been taken up, setting out the form of said land warrants, and alleging that prior to the 15th day of November, 1866, one J. P. Carter had become the owner for valuable considerations of the above-mentioned warrants, and was entitled to locate and select any unappropriated and overflowed lands in the county of Perry to the extent of the acreage called for by the said warrants; that on the 15th day of November, 1866, the lands involved in this suit were unappropriated swamp and — 87 — overflowed lands lying and being in tbe county of Perry, in the state of Mississippi; that on said day the said Carter, the holder and owner of said warrants, together with a large number of other warrants, applied to'the secretary of state for the issuance of a patent to him for the lands above described, and that he, the said' Carter, had previously located a part of the land warrants on the land above described and selected the same; and that Carter thereby became entitled to the issuance of a patent, being the equitable owner thereof, through the warrants aforesaid and through the location of the lands above described. It is further alleged that the secretary of state, in pursuance of the request, issued the said Carter a patent, signed by the Governor and sealed with the great seal of the state, but that through inadvertance and oversight the lands were not conveyed by specific description, although it was the intention of the parties to said instrument that the said lands be included in the said patent, and that they were omitted by oversight and clerical error, as well as by mutual mistake, from said patent; that thereafter the tract book of the state of Mississippi as well as the swamp land records entered, and notes by the respective officer charged with the custody and keeping of the same, as follows: Acres. Name of Locator. Description of Tract. 612.33 J. P. Carter. wy2, SE%, NE14 Of NE]4 and SW% of NE]4, Sec. 7, township 2, north, range 13, west. Date of Patent. Scrip. To whom Patented. Dec. 5.-1866. J. P. Carter. And that since said time the state has regularly collected and received taxes on the lands, and the same have been assessed to Carter, his grantees and successors in title. The complainant then deraigns his chain of title to the said lands, and then alleges that on the 10th day of January, 1920, the state undertook to issue a swamp and — 88 — overflowed patent for said lands to Aline Camp Hathorne, which patent was placed of record in Forrest county, Miss., and said Hathorne, through his attorney in fact, conveyed the lands to the defendant. It is further alleged that the patent issued to Hathorne is null and void, and that the deed to Jordan is likewise invalid, and does not convey title to the said defendant, and that their existence upon the records constitutes a cloud upon the complainant’s title, which he is entitled to have canceled, annulled, and set aside. The bill was answered by the defendant,- in which answer the title of the complainant is denied; the answer admitting the vesting of title in the State of Mississippi, but denying that title passed to Garter, and denying that Carter had located said lands or become entitled to a patent, and denying that they omitted from the patent by inadvertence or oversight. The answer being elaborate, it will not be further set out, but it is sufficient to place in issue the principal allegations of the bill. It appears that on or about the 15th day of November, 1866, J. P. Carter wrote to the then secretary of state the following letter: “I send you by express Perry county land warrants to the amount of twenty thousand one hundred and sixty acres (20,160) or 126 (only 125) pieces of scrip, each one hundred and sixty acres. I send you also by express the numbers of land in Perry county upon which I wish to place the scrip. You will please send me by express the patents. I wish the land in each township to be in a different patent; that is, I wish the land I enter in T. 1 S., R. 10 W., to be in one patent, and T. 1 S., R. 11 W., to be in another patent, etc. Send the patents to me by express to this place and direct in care of G. B. Dantzler. Should you wish any further information in regard to this thing, please let me know immediately at this place, directing as above.” With this letter was sent a list for various lands, including lands in section 7, township 2 N., range 13 W., as to which section the list reads as follows: — 89 — “Section 7, all that is vacant, 560 acres.” Numerous other bodies of land in the list are similarly described, “all that is vacant,” followed by a designated number of acres. Section 7, township 2 N., range 13 W., was a large-sized section, containing six hundred ninety-nine and fifty one hundredth acres, of which six hundred twelve and twenty-two hundredth were state lands at the time the list was filed. It appears that the application for lands in township 2, range 13 W., as shown in the record, made out by Carter, was four thousand one hundred and sixty acres, and it appears from the record that the patent in the record contains two and twenty-one one hundredths acres more than this amount of land in the said township and range. It appears, however, that the land in section 7 actually conveyed by the patent was less than five hundred and sixty acres. It further appears in the record that the specific descriptions of land contained in the patent were less than the number of acres noted thereon by the secre-tar)' of state. The chancellor found .for the complainant, and entered a decree canceling the defendant’s deeds, from which this appeal is prosecuted. The chancellor proceeded upon the idea, as reflected from his opinion, the case of Boddie v. Pardee, 74 Miss. 13. 20 So. 1, had the effect of making the tract book of the secretary of state’s office the exclusive evidence, and that it was superior to the patent. While the appellant contends that the tract book was not properly made up, because the warrants which were introduced in evidence did not have the location of the lands to which they were to be applied noted on the warrant itself, as required by section 15, chapter 16, Laws of 1852, wherein it is provided : “Which location shall be noticed upon the warrant or certificate in the following words, to wit: ‘I, A. B., have this day located the within warrant upon the - — 90 — quarter (or lots, as tbe case may be,) of section - — , of township-, of range-, in the county-. [Signed]-, Holder.’ ” The appellant also contends that the statute involved in the case above mentioned, Boddie v. Pardee, 74 Miss. 13, 20 So. 1, is a mere rule of evidence, and that, as both the patent and the tract book were introduced in evidence, the patent was the controlling and superior muniment of title, and consequently title never passed to Garter, and cites in support thereof Halloway v. Miles, 110 Miss. 532, 70 So. 697. Appellant also contends that the failure to indorse the land upon the warrant according to the act of 1852, supra, made the entry on the tract book of the lands in controversy invalid, citing Hardy v. Hartman, 65 Miss. 505, 4 So. 545, Becker v. Columbia Bank, 112 Miss. 819, 73 So. 798, and Burroughs Land Co. v. Murphy, 131 Miss. 526, 95 So. 515. In our opinion both the patént and the tract book were admissible in evidence, and as the tract book could be introduced in the absence of the patent, and in the absence of the patent would be primary evidence of the title of the complainant, yet the patent is also admissible, and, as its provisions are contrary to the tract book, that the surroundings may be looked to, and the question decided in the light of all the facts in the record, without deciding whether the patent is superior to the tract book, where both are introduced, or not. The patent was issued to Garter in 1866, was placed of record, and he was introduced as a.witness, and testified that whenever he sold lands he went to the patent for the description, and if it was not in his patent that he did not sell it, and that he did not claim lands that were not in his patent; that he had supposed the secretary of state embraced in the patent all the lands which he was entitled to receive on his application, and that he had given a quitclaim deed for the consideration of one dollar for the purpose of enabling Griffin to perfect his title; that if he had known that he was the owner óf the lands he would not have — 91 — conveyed them for the consideration of one dollar but Avonld have sold- them for their real value. ITe admitted, also, that he told Hathorne, that he did not claim any of the lands that were not embraced in his patent. He also testified that he gave Hathorne a quitclaim for a consideration of one dollar. He further testified that the records were burned in Perry county in 1878', and that he had some recollection of making Griffin a. deed prior to that time. Some of the lands embraced in the patent to Carter were sold for their value, and it appears that in 1905, Carter gave a quitclaim to the lands in controversy, not with any idea that he was owner of the lands, but with the idea of enabling other persons to perfect their own titles. We think, in view of all the facts and circumstances in the record, that the entry of the lands in controversy upon the tract book by the secretary of state was a mistake or error, and that the state never parted with that title to Carter. It follows, from what we have said, that the judgment of the court below will be reversed, and a decree will be entered here dismissing the bill. Reversed and dismissed.