ABLES v. FORRESTER

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Docket Number

No. 33283.

Judges

Anderson, J., delivered opinion of the court.

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ABLES v. FORRESTER.

V.B. Montgomery, of Belzoni, for appellant.

Tax title cannot be confirmed unless it is averred and proved that the original title has passed out of the United States Government. Complainant must recover upon the strength of his own title.

Griffith's Chancery Practice, sec. 211, pages 208-209; Huntington v. Allen, 44 Miss. 654; Adams v. Harris, 47 Miss. 144; Walton v. Tusten, 49 Miss. 569; Handy v. Noonan, 51 Miss. 166; Cook v. Friley, 61 Miss. 1; Phelps v. Harris, 51 Miss. 789; Griffin v. Harrison, 52 Miss. 824; Harrill v. Robinson, 61 Miss. 153; Hart v. Bloomfield, 5 So. 620, 66 Miss. 100; Hale v. Neilson, 112 Miss. 291, 72 So. 1011; Gilchrist-Forney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Hunter v. Bennett, 115 So. 204, 149 Miss. 368.

Party relying on tax title must prove title out of the government in addition to his tax deed. The title must be shown to have passed out of the government.

DeLashment v. McClelland, 118 So. 904, 152 Miss. 781; Griffith's Chancery Practice, sec. 219, pages 217, 218; Metcalf v. Wise, 132 So. 102, 159 Miss. 54; Lyon Co. v. Ratliff, 92 So. 229, 129 Miss. 342; Acoff v. Roman, 159 So. 555, 172 Miss. 141; Hatchett v. Thompson, 165 So. 110, 174 Miss. 502.

Allegation and attempted proof of common source of title both immaterial and not proved.

Long v. Stanley, 79 Miss. 298, 30 So. 823.

In the case of Acoff v. Roman, 159 So. 555, 172 Miss. 141, the appellee claimed under a tax deed exactly as does Forrester. The appellant claimed by a private deed of conveyance from a grantor whose identity was not disclosed. The same argument was made that the parties were claiming under a common source of title because the tax sale effected the conveyance to appellee of appellant's title and in reply to this argument the court said: "But this consideration does not advance the case a step further for the reason that the tax deed here in question is not shown to be a valid tax deed . . . If the land had not passed out of the government the tax deed is a nullity."

The bill of complaint must allege and the proof must establish that the records were examined and all notices sent out to any lienors shown of record.

Roebuck v. Bailey, 166 So. 358; Lamar Life Ins. Co. v. Billups, 169 So. 32.

Final judgment for appellant should be rendered.

It is the rule that a litigant who fails to make essential proof shall not have "two bites at the apple."

McCoy v. Tolar, 90 So. 628, 128 Miss. 202; Section 3378, Code of 1930; 3 Am. Juris., secs. 1197 and 1203.

The Supreme Court always renders final judgment where the facts of the record are undisputed and where on the face of the facts shown by the record it is simply a question of law as to who was entitled to a judgment. In these cases the Supreme Court always renders such final judgment as the lower court should have rendered.

Somerville v. Mayes, 54 Miss. 31; Menken v. Gumbel, 57 Miss. 756; Hariston v. Montgomery, 102 Miss. 364, 59 So. 793; Fowlkes v. Hardin, 109 Miss. 318, 68 So. 468; Grenada Grocery Co. v. Tatum, 113 Miss. 388, 74 So. 286; 3 Am. Juris., sec. 1207; Hartford Fire Ins. Co. v. Dickerson, 134 So. 177, 160 Miss. 439; Moss v. Davidson, 1 S. M. 112; Hattiesburg Chero Cola Bottling Co. v. Price, 143 Miss. 14, 108 So. 291; McCoy v. Tolar, 90 So. 628, 128 Miss. 202.

R.H. Nason, of Belzoni, for appellee.

Counsel for the appellant refers to the unexcelled work of Justice Griffith and cites Sections 219, 217 and 218 thereof. These sections state that a confirmation of a tax title is void if there is no tax title to confirm, which, of course, is true. In Section 219, Justice Griffith bases his statement of the law on note 1 thereof, which note refers to Lyon v. Ratliff, 129 Miss. 342, 92 So. 229. The reading of this case shows that the question of the common source of title was not decided nor referred to. It was also a bill to confirm the title. This case further refers to the case of Long v. Stanley, 30 So. 823, in which the court stated that in actions of ejectment, the complainant must show title in one of the following ways: "First, title in himself from the government down; second, title in himself by adverse possession actual or constructive for the statutory period; third, title in himself from the defendant; fourth, that parties to the suit claiming under a common source, the complainant having the better title from that source." I submit that Section 219 of Griffith's Chancery Practice, as well as the authorities cited by Mr. Griffith do not show or prove that parties must prove title out of the government in addition to his tax title.

If title is proven to a common source, and it is further proven that complainant has the better title, it is not necessary to prove title out of the government.

Griffith's Chancery Practice, sec. 216; Richards v. Lee, 45 So. 570; Slack v. Swaim, 8 So. 545; Peoples Bank of New Orleans v. West, 67 Miss. 729, 7 So. 513; Wolf v. Doe, 13 S. M. 103; Hughes v. Wilkerson, 28 Miss. 600.

Appellant states in his brief that Forrester did not allege that the chancery clerk had examined the records and had sent out lien notices to the lienors. That, we submit, was not necessary as the statute with reference to the liens protects lienors only and evidence does not show that Ables was a lienor.

Appellee submits that in the first place it is not required by law that he prove a common source of title.

Section 402, Code of 1930; Griffith's Chancery Practice, secs. 22, 24, 28; Atkinson v. Felder, 78 Miss. 83, 29 So. 767; Baker v. Nichols, 72 So. 1; Whitney v. Bank, 71 Miss. 1009, 15 So. 33, 23 L.R.A. 531; Railroad Co. v. McConnell, 90 So. 321; Vicksburg Co. v. Citizens Co., 30 So. 725; Robertson v. Kraus, 92 So. 74; Lumber Co. v. Railroad Co., 50 So. 445.

Clearly the appellee contends that under said sections and under section 160 of the Constitution, and due to the fact that the chancery court assumed jurisdiction of this case, and to the fact that the demurrer filed therein was not considered or due to have been considered by the court, the chancellor had jurisdiction to determine the right of possession and the rental upon said property, and that for said purposes a deraignment of his title was unnecessary. Even though the bill of appellee as to the rentals due him and possession of said place might have been legal in nature rather than equitable, the court having heard said cause and having rendered a decree thereon, the same should not be reversed by the Supreme Court under Section 147 of the Constitution of State of Mississippi.

Indianola Compress Co. v. Southern R.R. Co., 110 Miss. 602, 70 So. 703.

In Chiles v. Gallager, 67 Miss. 413, 7 So. 208, and in Wilkinson v. Hiller, 71 Miss. 678, 14 So. 442, it was held that complainant must show as perfect a title as would enable him to recover in an action of ejectment. It was also held in Slack v. Swaim, 8 So. 545, that where both parties claim under the same person, since neither of them can deny his right, as between them, the elder is better title, and must prevail.

Bolton v. Roebuck, 27 So. 630; Densmore v. Hardeson, 111 Miss. 313, 71 So. 567; Metzger v. Joseph, 111 Miss. 385, 71 So. 645.

Where both receive title from common source, neither can deny such title.

Long v. Stanley, 30 So. 823; Westerfield v. Merchant, 93 Miss. 791, 47 So. 434; Peoples Bank of New Orleans v. West, 67 Miss. 729, 7 So. 513; Hughes v. Wilkerson, 28 Miss. 600; Gillum v. Case, 7 So. 557, 67 Miss. 588; Slack v. Swaim, 8 So. 545; Richardson v. Lee, 45 So. 570, 91 Miss. 657; Wilkinson v. Hiller, 14 So. 442.

In the case of Richards v. Lee, 45 So. 570, 91 Miss. 657, it was held that where there was shown a common source of title it is not necessary to show the title out of the government.

Griffith's Chancery Practice, page 214, sec. 216.

Argued orally by V.B. Montgomery, for appellant.

1. QUIETING TITLE.

In suit to establish title to realty, to cancel adverse claim, and for possession, plaintiff was not entitled to recover on the weakness of his adversary's title, but was required to recover on the strength of his own title.

2. QUIETING TITLE.

In suit to establish title to realty, to cancel adverse claim thereto, and for possession of the land, wherein both plaintiff and defendant relied on forfeited tax sale patents from the state and the defendant alleged invalidity of plaintiff's patent on ground that title had never passed out of the United States government, plaintiff was not entitled to recover in absence of allegation and proof that title had passed out of the United States government and that land was subject to private ownership and that he was the true owner.

Anderson, J., delivered opinion of the court.

Appellee, Forrester, filed his bill in the chancery court of Humphreys County against appellant, Ables, to establish his title to one hundred and sixty acres of land in that county and to cancel the claim of Ables thereto and for possession of the land. The cause was tried on bill, answer and proofs resulting in a decree in Forrester's favor, from which decree Ables appeals.

Forrester relies for title on a forfeited tax sale patent from the state. The bill charges that Ables also relies on a forfeited tax sale patent from the state, but that Forrester's is prior in date and in right. Both patents are described in detail in the bill.

Ables answered, including therein a demurrer to the bill. The answer admitted the issuance of the two patents and the priority in date of Forrester's, but averred that it was without validity because the bill failed to allege that at the time of the assessment and sale of the land to the state for its taxes the title had passed out of the United States, and further averred that as a matter of fact the title had never passed out of the government. The answer averred further that Ables was the true owner of the land and in possession but failed to deraign title. On the trial no evidence was offered that title had passed out of the government.

Both patents were issued under the same tax sale to the state, therefore if one was void because the title had not passed out of the government, both were. Forrester, however, under the law was not entitled to recover on the weakness of his adversary's title, but on the strength of his own. This is not a case where both parties claim title through a common source shown to be a valid title. Forrester was required to allege and prove that the title to the land had passed out of the United States government, in other words, to prove that the land was subject to private ownership, and that he was the true owner. Acoff v. Roman, 172 Miss. 141, 159 So. 555.

Reversed and judgment here for appellant.

ABLES v. FORRESTER.

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