RELIANCE INV. CO. v. JOHNSON

Howie, Howie McGowan, of Jackson, for appellant.

There is one simple legal proposition involved in this appeal; can these defendants as private individuals plead and offer testimony of the fraudulent procurement of the patent from the state? We say it is clearly the law that they cannot.

Patterson v. State, 170 So. 645.

In State ex rel. Brown v. Poplarville Saw Mill Co., 119 Miss. 432, 80 So. 124, the court, speaking through Judge Ethridge said in part: "The Land Commissioner is a trustee of the public and cannot surrender his official control and cannot contract away his rights to control the litigation which the statute authorizes him to institute."

Lamar County v. Tally Mayson, 116 Miss. 588, 77 So. 299; Miss. Road Supply Co. et al. v. Hester, 188 So. 281.

It is the law settled beyond cavil or dispute that the individual citizens of the state of Mississippi, of whom there are some two million, cannot take it upon themselves to take up the burden of litigation on behalf of the public offices, bureaus and departments of the state of Mississippi. The statutes specifically direct who shall control litigations, and this court has repeatedly held that this right and duty can neither be shirked, contracted away, or voluntarily assumed by any individual of the state of Mississippi. If this were not the law, our courts would be cluttered with an interminable mass of litigation. Every person who feels aggrieved or impelled by a personal whim cannot step into the breach and take over the duties as prescribed by statute in reference to litigation in which the state of Mississippi has an interest. This is too plainly defined by our law to merit further discussion.

However, in order to avoid and circumvent this simple and established principle of law, the appellees in the court below and the chancellor adopted a device that is not only ingenuous but bordering more on the naive. They solemnly state, although it is the law that no one but the land commissioner of the state of Mississippi, as provided by statute, may plead and prove fraudulent procurement of the patent from the state, still this complainant's bill will have to be dismissed because he is seeking "affirmative relief." The practical application of this unusual and unprecedented line of reasoning is that the public would be deprived of the benefits of section 402 of the Mississippi Code of 1930, which is our statute providing for confirmation of tax titles.

In other words, if this theory of the law could stand, section 402 might as well be deleted from the code. If the state should wait one hundred years to bring suit to cancel the patents fraudulently procured from it, then no holder of a tax patent could ever file suit and procure a confirmation because at the whim of anybody named defendant, his bill would have to be dismissed on account of the fact that he was seeking "affirmative relief."

With all due respect to the trial court and this court, we cannot refrain from saying that the theory of the law adopted by the court in the trial of this case is grossly erroneous and absolutely without any foundation in reason or common sense.

Lee M. Russell, of Jackson, for appellees.

Complaint must show title in himself.

Peterson v. Kittredge, 65 Miss. 33.

One seeking to confirm a tax title must recover, if at all, on the validity of his own title.

Gregory v. Brogan, 74 Miss. 694; Davis v. Cass, 72 Miss. 985; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11; Lyon Co. et al. v. Ratliff, 127 Miss. 342.

The prima facie case attempted to be made out when complainant closed his case could apply only to irregularities and the like, as set forth in section 402, Code 1930. That sort of showing alone could not, in equity, cut off all charges of fraud, if proven. This section of the code specifically demands that complainant set forth and prove a chain of title. If in that chain it develops as in the Lyon case, supra, that one link in the chain is missing, he cannot prevail.

In the case at bar the following clearly appears: (1) The application of Amos Johnson to buy the land from the state is a fraud upon the state. Every material thing required by law to be placed therein was a wilful misrepresentation; the intent to deceive the officers — the land commissioner and Governor — to procure this patent is too clear to admit of argument. (2) The evidence clearly shows that the title of this property rests and remains with A.M. Johnson, grantee of the original buyer, Amos Johnson. That cuts off any title. It breaks the chain required by law of complainant. (3) The entire proof shows that the moving hand of all this chain of title, beginning with the application for purchase, was engineered by Walter Woods. At every turn, every transfer, Walter was the sole manager from first to last.

All these matters are condemned and outlawed in the most positive terms by the Streater case and the McAdams case.

Streater et al. v. Land Commissioner, 180 Miss. 31; State ex rel. McCullen, Land Commissioner, v. McAdams et al., 188 So. 551.

Beyond question the state could by suit of its own have the title of complaint cancelled, as was done in the Streater and McAdams cases above, but the state was not made a party to this suit. Complainant must show a perfect legal or equitable title in himself and when it clearly appears, as we say, from any source that one or more links in his chain of title are rotten or broken, his case falls to the ground. What court of conscience could approve, confirm, if you please, a title wherein at every step of the chain it clearly appears that it was a gross fraud? The fact is, as the record shows, he had no title. He not only had to make profert of the deed whereby he obtained some sort of title, but under section 402 it became imperative that he set forth and prove each link in his chain. For example, suppose someone forges a deed to certain lands; he sells it to an innocent man, the mere fact that this innocent purchaser pays for the land, in the best of faith, does that in any sense relieve him of the demands of the law that he set forth and prove his chain of title? The instant the forgery is uncovered that moment he fails, that link of his chain is bogus; he cannot prevail. Hence, a prima facie case presented to any court means little. Proof of forgery, fraud, or the like immediately destroys every right he thought he had.

Lee M. Russell, for appellees, on suggestion of error.

Appellees by their attorney come and present this, their suggestion of error in the above numbered and entitled cause and assign the following, to-wit: (1) In the court's opinion, as shown therein, attention only is paid to the law as set forth in section 402, Code of 1930.

We respectfully submit that, in the confirmation of any title, the above section contains but a small part of the law; that, along with said section there must also be considered section 405, Code of 1930. Said section, in the main part, says this: "In bills to confirm title to real estate and to cancel and remove clouds therefrom the complainant must set forth in plain and concise language the deraignment of his title," etc.

This section, as we have suggested, was entirely ignored in the court's opinion.

The court erred in its conclusions in holding that although appellees, in their answer and proof, attempted to show that the state's patent to Amos Johnson was fraudulently procured, and that "fraud appears in the execution of the deeds of the appellant's chain of title after the patent from the state was executed" was not competent proof and that it did not establish beyond question that appellant had no standing in court. We insist that no legal or equitable title was ever shown by appellant. Whatever standing he had was overthrown beyond question by the record proof.

The court holds that some one or more deed or deeds must be proven to be nullities and assigns the reason that they cannot be set aside except by the grantors therein, etc. We have shown by the record that the deed of Amos Johnson to his son was a forgery, the acknowledgment thereto was a forgery, the name of the grantee, R.L. Flowers, was a forgery. What else is there needed? This was certainly competent proof, the lower court heard it, passed on its weight. Does the court mean to hold that a chancellor may not hear oral proof of forgeries and frauds and make a decree thereon? This proof was not disputed. It shows fraud of the grossest sort, then could not the chancellor declare all such a nullity, and in framing of his decree dismiss the bill? We insist the record shows that there were many frauds shown therein that would justify the chancellor in dismissing the bill and that the chancellor is not required, unless required to by the statute, to set forth in detail the facts, all the facts upon which he founds or bottoms his decree. His decree is entitled to stand, we respectfully insist, if the record shows enough competent evidence to sustain same. Even in conflicting evidence this court may not disturb the decree of a chancellor. This is well settled in many decisions of this court.

We respectfully urge that the court do not hold that unless a title be proven a nullity that fraud, even though clearly proven, cannot defeat appellant from having his title confirmed. To so hold will bring a cloud of litigation that will enable, as we see it, many unscrupulous persons who will impose upon many innocent persons.

The decisions of this court, as we interpret them, do not so hold.

Boyd v. Thornton, 13 S. M. 338; Griffith's Chan. Practice, sec. 590.

The complainant must recover under the strength of his own title and not on the weakness of his adversary.

Banking Co. v. Bryan, 16 Miss. 265; Robert v. Lewis, 119 Miss. 639.

Complaint must show either a legal or an equitable title, although the defendant have no title whatever.

Zukosky v. McIntyre, 93 Miss. 806; Hart v. Bloomfield, 66 Miss. 100; Ricks v. Bassett, 68 Miss. 250; Pierce v. Hunter, 73 Miss. 754; Griffith's Chan. Practice, Sec. 587; Wilkerson v. Hiller Co., 71 Miss. 678; Chiles v. Gallagher, 67 Miss. 413.

Argued orally by M.M. McGowan, for appellant, and by Lee M. Russell, for appellees.