Hoskins v. Illinois Central Railroad

1. Public Lands. Homestead laws of United States. Exemption from taxation. Lands entered under the homestead laws of the United States are not liable to taxation before the time at which a right to a patent is perfected. 3. Same. Tax sale. Statute of limitation. Code 1893, § 3735. The three years’ statute of limitation (code 1893, $ 3735), barring suits for lands against parties holding under tax titles, applies only to lands that were taxable when sold for taxes. ■Patterson v. Durfey, 68 Miss., 784, and Carlislev. Fader, 69 Miss., 384, overruled.

From the circuit court of Lincoln county. Hon. Robert Powell, Judge. Hoskins, appellant, was plaintiff in the court below, and the railroad company, appellee, was defendant there. The action was in ejectment. The defendant claimed the land under a tax title, made in 1885 for the taxes of 1884, and showed full three years’ actual adverse possession- of the premises thereunder before the beginning of the suit. It was shown by the plaintiff that the land had been homesteaded from the United States government in 1882, and the homesteader from whom plaintiff derives title had not perfected his right to a patent when the tax sale was made. The court below, following the decisions of the supreme court mentioned in the opinion and there overruled, instructed the jury to find for the defendant. From a verdict and judgment in the court below against him, the plaintiff appealed to the supreme court. While the land was a part of the public domain of the United States, having been entered as a homestead in 1882, with the final certificate in 1889, and the patent in 1891, it was sold for taxes in 1885, when the state had no power to tax it or deal with it in any way whatever. Granting all that has been said by this court in its rigorous interpretation and application of the three-year statute, it is yet true that the statute is not applicable to the facts here. In every case decided by this court the land had ceased to be part of the public domain of the United States, was therefore taxable, and properly on the assessment roll, though in some cases not salable for some reason. Here the land belonged to the United States, was held as part of the public domain, was entered upon under the beneficent homestead law, and could not become private propert}r under five years and upon performance of the prescribed conditions. In this condition it was beyond the power of the state to tax it. It was not liable to be dealt with by the state, and a sale for taxes was absolutely void, not for any defect in the proceedings or sale, but because it was not a subject in the power of the state. Gould & Tucker’s Notes on Rev. Stat. U. S., 537, sec. 2296; Raihuay Co. v. Me Shane, 22 Wall., 44; Northern Pacifies. Traill Co., 115 U. S., 60; Van Brocldin\. State, 117 U. S., 151; Carroll v. Safforcl, 3 How. (U. S.), 441; MoCxdloeh^. Maryland, 4 Wheat., 429. The words, £<a conveyance by a tax collector, in pursuance of a sale for taxes, ’ ’ used in the statute, presuppose assessment and liability for taxes (constitutional prerequisites for a sale for taxes), are not applicable to land not in the taxing-power of the state. The prime object of the law being to make owners pay taxes, it applies only to lands upon which taxes may be assessed and collected. If to punish delinquency be an object, it applies only to such as owe taxes, and not to those whose lands could not be taxed by the state. The five years act of 1860 was not applicable to lands paid on, because they were not within its purview (Metcalf v. Perry, 66 Miss., 68), nor did it apply to a levee tax sale of land held by the state for the same reason. Pieles v. Basleett, 68 Miss., 250. The statute applied only to lands contemplated in its enactment. Clay v. Moore, 65 Miss., 81; Bennett v. Chaffe, 69 Miss., 279. So-as to the three years’ statute. Land not within its purview is not affected by it. The three years’ occupation must be in pursuance of a conveyance by a tax collector of land that might, under proper proceedings, be lawfully taxed and sold by the state. The statute does not apply to one under, disability to acquire title, and how can it apply to lands which by no proceedings could be lawfully sold ? McQee v. Holmes, 63 Miss., 50; Jones v. Merrill, 69 Miss., 747; Pool v. Ellis, 64 Miss., 555. In Jones v. Merrill, 69 Miss., 747, speaking of a tax title in conjunction with a three years’ occupation, the court said, ‘ ‘ being a nullity, it is no more evidence of a conveyance by a tax collector than it is of a valid conveyance under a valid sale for taxes. ’ ’ In Brougher v. Stone, 72 Miss., 647, stress is laid on the fact “that the lands were salable (subject to sale) because of the delinquency of the owner, ’ ’ etc. Here there was no delinquency, for the lands could not be taxed. The tax conveyance here is not available to start the three years’ occupation as a bar, because not such conveyance as the legislature had in view-in making a tax conveyance and three years’ occupation a bar- The real and only point is as to the applicability of § 2735,. code 1892, being the three years’ statute of limitation to protect a tax title. The railroad company held under a tax title, and had been in the actual adverse possession of the land for more than three years before the suit was begun. Its defense was perfect under the decisions of this court. Patterson v. Durfey, 68 Miss., 779; Carlisle v. Yoder, 69 Miss., 384.