Edward Hines Yellow Pine Trustees v. State ex rel. Moore

Smith, C. J., delivered the opinion of the court. Two propositions are particularly stressed on the suggestion of error: (1) That in applying the rule that a ‘ ‘ patent ’ ’ to public land carries with it the presumption that all of the legal prerequisites necessary to its issuance have been “complied with,” to the absence from the record of the list of lands required by section 7, chapter 34, Laws of 1852, to be furnished by the secretary of state to the commissioners of the Southern district of Pearl River, we have necessarily overruled Hardy v. Hartman, 65 Miss. 509, 4 So. 545, wherein it was held that a patent issued to the Pearl River Improvement & Navigation Company was void, for the reason that it did not appear from the [534] record that the bond required of the Pearl Eiver Improvement & Navigation Company by the statute under which the patent was issued had been executed. (2)' That the distinction drawn in our former opinion between the case at bar and Tynes v. Southern Pine Co., 100 Miss. 129, 54 So. 885, is unsound. We are not here concerned with the correctness of the decision in Hardy v. Hartman, supra, and the rule there applied, whether correct or not, to titles derived through patents issued to the Pearl Eiver Improvement & Navigation Company has become a rule of property and will not be now departed from. It may be conceded for the sake of the argument that the distinction hereinbefore made between the case at bar and the Tynes Case, supra, is unsound. Nevertheless that case is not controlling here, for the reason that the court was not there called on, and did not take into consideration the provision of the statute requiring the secretary of state to furnish the commissioners with a list of lands to be sold. Overruled.