Paepcke-Leicht Lumber Co. v. Savage

Sykes, P. J., delivered the opinion of the court. The appellant lumber company, complainant in the chancery court, prayed in its bill to quiet and confirm its title to lands therein described, and also to enjoin the cutting of timber by the de-fendants on these lands. The cause was heard on bill, answer, and proof, the temporary injunction was dissolved, damages were allowed the defendants, and the bill was dismissed. From which decree this appeal is here prosecuted. The three tracts of land whose title is in issue in this cause lie outside of the levee in Tunica county. — 29 — In a suit to confirm title and cancel clouds thereon it is necessary for the complainant to prove title in himself to the land, otherwise his bill should be dismissed. Chiles v. Gallagher, 67 Miss. 413, 7 So. 208; Long v. Stanley, 79 Miss. 298, 30 So. 823. 'We will discuss separately the title of appellant to each of the three tracts of land involved: First Tract. Appellant claims to own an undivided one-half interest in the South West quarter of section *17, township 4, range 12 west. Its claim of title to this tract rests upon a sale to the state on July 7, 1868; a sale to the board of liquidating levee commissioners May 17, 1869; a sale to the board of liquidating levee commissioners May 8, 1871. During the argument of the case, over the objection of the appellant, the court permitted the appellee to prove the payment of taxes on this land for the year 1874. Under the Abatement Act passed March 1, 1875 (Laws 1875, chapter 2), the state thereby declared that it would abandon all claim under preceding tax sales to it on condition that the owners of the land would pay the state, county, and levee taxes for the year 1874. The payment of the taxes for that year was thus a satisfaction of all taxes due the state,- and the state by it' released its claim to any title in these lands. Sigman v. Lundy, 66 Miss. 522, 6 So. 245; Dingey v. Paxton, 60 Miss. 1038; Paxton v. Valley Land Co., 68 Miss. 739, 10 So. 77. It was entirely proper for the court to admit the evidence of the payment of these taxes. The sale of these lands to the board of liquidating levee commissioners was void because the lands were outside of and were not protected by the levee. Owens v. Railroad Co., 74 Miss. 821, 21 So. 244. The title of the complainant (appellant) to these lands rests upon the validity of the title of the state and levee board above set out, and, since both the sales to the — 30 — state and the levee board were void as above shown, it necessarily follows that the complainant failed to prove its title in this tract. Second Tract. The South "West quarter of section 16, township 1, range 12 west. Appellant’s first claim of title to this tract depends upon a tax sale to the board of liquidating levee commissioners dated May 17, 1869; a tag deed to the levee board dated January 20, 1873; and a proceeding in the chancery court of Tunica county styled M. A. Hunter v. “Unknown Parties.” The sales for levee taxes were void because the lands were not protected by the levee. Some years before the bringing of this- suit Mrs. M. A. Hunter, predecessor in title of complainant, brought suit in the chancery court to confirm her title to these same lands under sections 305 and 306. Hemingway’s Code. In her bill she first claimed a valid tax title and, second, to have been in the actual adverse possession of the land for the statutory period. As an exhibit to her bill she filed an abstract of title. The defendants named in the bill were “unknown parties.” The affidavit of the attorney to the bill states in effect that the post office addresses of the persons who owned the lands at the dates of the several sales for taxes are to him unknown and that he believes that they are unknown to the complainant. Further, that affiant, after diligent search and inquiry for unknown defendants, has been unable to locate or find any of them, and that he believes the original owners as well as any other persons who may have any claim or interest in the lands are nonresidents of the state of Mississippi and their post office addresses are to him unknown, and he believes are unknown to the complainant. The abstract of title made an exhibit to the bill discloses the names of the owners of a great portion of this land before the alleged tax 'sales. These people were — 31 — from this record the apparent owners of the lands when they were sold for taxes, yet neither they nor their heirs are made defendants in the Hunter bill. Under either of these two sections, 305 or 306, it is necessary that the bill disclose the names and places of residence of all persons interested in the land so far as known to the defendant or as he can ascertain by diligent inquiry. The reputed owners of the lands at the time of the tax sales, as disclosed by the abstract of title, are under these sections interested parties in these lands and they are necessary parties defendant. The names of these necessary defendants cannot be unknown to the complainant when the abstract of title discloses them. Also a diligent inquiry informs him of these names which ' appear on his abstract. In the case of Smith v. Denny, 90 Miss. 434, 43 So. 479, it is said that: “It is of the very essence of a proceeding* to confirm a tax title that the owner of the land at the date of sale, or his heirs, as the case may be, should be made parties, as well as other persons interested in the land, so far as known to the complainant, or as he can ascertain by diligent inquiry.” Under these statutes it is necessary that the persons or their heirs who appear to.have been the owners of the lands at the time of the tax sales be made parties defendant. The publication for unknown defendants is only good where the bill shows that the persons interested are unknown'to complainant and that he has made diligent inquiry for their names and could not obtain them. This process by publication for unknown defendants is in lieu of personal service and summons by publication when the names are known. The proper service or publication of process is jurisdictional. The names of these defendants were not unknown, consequently the process for unknown defendants was not correct and was equivalent to no — 32 — process, and tlier-iore the court acquired no jurisdiction either over the lands or the persons of the defendants in the Hunter proceeding;. That proceeding' was void, and can be attacked here. It is not a ease of a decree being merely voidable or irregular, but a case of a void decree. The principle is well settled in this state that, where a decree is absolutely null and void, it is subject to attack anywhere collaterally or otherwise. Theobald v. Deslonde, 93 Miss. 208, 46 So. 712. Though the bill in this case was not only to confirm a tax title, but also to confirm a title acquired by adverse possession, as may be done under section 306, Hemingway’s Code, the process for defendants is the same under both statutes, and, since there was no process, the Hunter proceeding was void under both statutes. Third Tract. Fractional section 1.3, township 4, range 13 west. The appellant claims title to this land claiming it as accretions to sections 18 and 19. If appellant had proved title to sections 18 and 19, we would then be presented with a most interesting .question, namely, whether or not section 13 as originally platted has been entirely washed away by the Mississippi river and whether the land subsequently formed over the site of this old section has become by accretion part of sections 18 and 19. This question we are not called upon to decide, for the reason that the appellant has failed to prove title to sections 18 and 19. The only record title of appellant to sections 18 and 19 is based upon void sales of the land for levee taxes, because these two sections were not protected by the levee, and the levee sales were void for the reasons given in discussing tract No. 1. The other claim of the appellant to title to these sections is based upon the void decree in the Hunter case above discussed. — 33 — Neither are we called upon to discuss the question of the proportioning of the accretions to the various tracts of land involved, for the reason that the appellant has failed to show title to any of the lands. For this reason the decree of the court dismissing the bill, dissolving the injunction, and allowing an attorney^ fee is affirmed. There being no contest as to the right of the attorney to ah allowance of a reasonable fee in this court, and that five hundred dollars is a reasonable fee, counsel for appellee is here allowed for this service an additional fee of five hundred dollars. Affirmed.