THOMPSON v. REED ET AL

Jas. A. Finley, of Tupelo, for appellant.

The land involved in this suit is wild, unimproved land in Benton County, Mississippi. In 1931 this land was owned by Mary Scott, now deceased, who failed to pay the taxes assessed against it, and the same sold to the State of Mississippi for taxes for the year 1931 on the first Monday in August, 1932, and was certified to the state by the chancery clerk of Benton County on September 17, 1935. On December 10, 1936, the State of Mississippi, through its duly authorized Land Commissioner, issued its patent conveying said land to T.L. Shankles. On August 13, 1938, T.L. Shankles conveyed said land to the appellant, Lewis Thompson, both of which said conveyances were duly recorded in the land records of Benton County, Mississippi. On August 20, 1938, the appellant, Lewis Thompson, gave a deed of trust on said land to the First State Bank of Holly Springs, and at said time paid the taxes on said land for the year 1937, that being the first year it was assessable since the state did not convey it until December 10, 1936. The appellant afterwards paid the taxes on said land for 1938, 1939, and 1940 and gave two additional deeds of trust on said land, one on September 25, 1939, and one on February 21, 1940. Appellant offered the timber on said land for sale on numerous occasions and went upon it in person and by agent with prospective buyers. Taxes for the year 1941 were not paid and the land was sold for taxes to one F.O. Hudspeth and was later redeemed and the taxes for 1943 paid in the name of John Scott by E.D. Robins, one of the complainants and cross-defendants.

It is admitted that the tax sale to the state on the first Monday of August, 1932, was void. The appellant bases his claim to the land involved in this suit on the patent from the State of Mississippi to T.L. Shankles, a deed from Shankles to him and on the provisions of Sections 716 and 717 of the Code of 1942. The purpose of the above two sections of the Code is the collection of taxes. Frequently errors occur in the matter of the sale of land for taxes and the legislature enacted these statutes to encourage people to purchase from the state lands sold to it for taxes and to purchase at tax sales in order that the state might collect the tax. The chancellor held that the appellant was not entitled to a decree under the three year occupation statute (Section 716, Code of 1942) and with reference to Section 717, Code of 1942, merely stated in his opinion that this section did not apply. The chancellor also held that the appellant was not entitled to the statutory penalty as provided by Section 1075 of the Code of 1942.

It will be remembered that this land is wild and unimproved. Possession may be shown by acts suitable to the character of the land. A fence or inclosure is not an essential element of adverse possession, but is only one of many acts indicative of possession and claim of ownership, and, we may add, cultivation is not an essential element when the acts of ownership are such as those to which the land is adopted, and such occupancy and use is continuous, exclusive and hostile to the claims of others, and intended to be such. The payment of taxes is to be taken into consideration with the other facts and circumstances. Possession under a claim of right is a question of fact, the existence of which is to be determined by the conduct, acts of ownership exercised over the land, and declarations of the party in possession.

Normant v. Eureka Co. (Ala.), 12 So. 454.

Neither actual occupation, cultivation or residence are necessary to constitute actual possession when the property is so situated as not to admit of any permanent useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim.

Ford v. Wilson, 35 Miss. 490, 72 Am. Dec. 137; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Cornell University v. Mead et al. (Wis.), 49 N.W. 815.

Chapter 196 of the Laws of 1934, which is brought forward in Section 717 of the Code of 1942, provides that the owners of any land sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title to the state or its patentees or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes within two years after the period of redemption shall have expired. This land was certified to the state on September 17, 1935, the acts of possession of the appellant began in 1938, to say nothing of the recording of the state's patent to Shankles in 1936, yet no action or suit was filed by the owners or anyone claiming under them until 1944. If the constructive possession of the true owners of the land in this case was not invaded and disturbed for more than two years prior to the filing of this suit and if the proof introduced by the appellant does not show his actual occupation or possession for more than three years prior to the filing of this suit, then the legislature had better enact some other statute whereby the State Treasury will benefit by the purchase of lands sold to the state for delinquent taxes.

The appellees, E.G. Reed and E.D. Robins, are liable for the statutory penalty. When they cut the trees they knew that the title to this land was claimed by Lewis Thompson. They had endeavored to buy the land from Bernice Marmon, James Scott and John Scott in order to have a law suit with Lewis Thompson. Regardless of legal advice they are held to the knowledge that if John Scott had any title whatever, then Bernice Marmon and James Scott each have the same title, to say nothing of the claim of Lewis Thompson. Even if they thought that Bernice Marmon and her brothers had any sort of title to this land, they knew that John Scott could not convey the interest of the whole, unless properly authorized so to do. They knew that John Scott was not so authorized. Yet, on the flimsy excuse of acting on legal advice, when the facts stated above were within their own knowledge, they proceeded to cut forty-three trees in utter disregard of the claim of Lewis Thompson. Can it be said that this conduct was not willful and reckless and was with proper precaution to prevent a trespass? If not, they are liable for the statutory penalty of $15.00 per tree or $670 plus the actual value of the trees so cut which is shown by the proof to be $25.

Therrell v. Ellis, 83 Miss. 494, 35 So. 826; Code of 1942, Sec. 1075.

Dean Belk, of Holly Springs, and Pegram Pegram, of Ripley, for appellees.

A tax sale made on a day not authorized by law is absolutely void. It necessarily follows that a forfeited land tax patent on such sale is void and conveys no title, that a quit-claim deed by such patentee conveys no title and that a grantee in such deed obtains no title thereby.

E.L. Bruce Co. v. Smallwood, 188 Miss. 771, 196 So. 227.

Section 716 of the Code of 1942, relied on by appellant here and below, has been the law in the successive codes since 1871. It is termed the "three years' actual occupation under tax title" statute. This section does not apply in cases of wild lands, not actually occupied by anyone (admittedly the case here).

DuBose v. McNeil, 104 Miss. 634, 61 So. 172, 706.

In a case where a patent to land based on a sale made on a day not authorized by law was knocked off to the state, the only way that such patentee or his grantee may obtain title to said land is by two years' adverse possession, as that term is generally defined, even though the true or record title owner is only in constructive possession of said land; and this is true notwithstanding Section 717 of the Code of 1942, Chapter 196 of the Laws of 1942.

Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815, 20 So.2d 821; Russell Inv. Co. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102; White v. Noblin, 183 Miss. 92, 183 So. 914; E.L. Bruce Co. v. Smallwood, supra; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491.

The character of the adverse possession under said Section 717 of the Code of 1942 for the two-year period, in order to divest title out of a true owner of land, even though such owner is merely in constructive possession thereof, must be of that same character of adverse possession as is contemplated under Section 711 of the Code of 1942, which is the ten years adverse possession statute.

Leavenworth v. Claughton, supra.

In order to bar the true owner of land from recovering it from an occupant in adverse possession and claiming ownership through the operation of the statute of limitations, the possession must have been for the whole period prescribed by the statute, actual, open, visible, notorious, continuous and hostile to the true owner's title and to the world.

Alexander v. Polk, 39 Miss. 737; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660; 1 Am. Jur. 793, Sec. 3.

A claim to title to land unaccompanied by adverse possession does not give such claimant title. Nor does payment of taxes under such condition do so.

Leavenworth v. Reeves, supra.

Statutory damages for the cutting of trees will be allowed only when the proof shows that the cutting was willful; and this implies both knowledge and intent or a degree of recklessness so gross as to constitute willfulness. Mere mistakes or carelessness is not enough.

E.L. Bruce Co. v. Smallwood, supra.