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BOARD OF TRUSTEES COUNTY BOARD OF EDUCATION v. CARL RYE AND WIFE

MARCH 02, 1988

BOARD OF TRUSTEES COUNTY BOARD OF EDUCATION
v.
CARL RYE AND WIFE, GLADYS B. RYE; FEDERAL LAND BANK OF NEW ORLEANS; SOUTHERN ROYALTY COMPANY, MARTHA RYE WATKINS; WINONA RYE FREEMAN; AVONELLE RYE COLE; FLORA NELL RYE DOBBS; NEAL CLEMENT; HOWARD E. STOVER; ESTHER PEELER LEDBETTER; DICK L. PEELER; AND J. W. YOUNG, IF LIVING, AND IF DECEASED HIS IF LIVING, AND IF DECEASED HIS IF LIVING, AND IF DECEASED HIS UNKNOWN DEVISEES OR HEIRS AT LAW AND BOARD OF TRUSTEES OF THE LOWNDES COUNTY BOARD OF EDUCATION



EN BANC.

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

The Board of Trustees of Monroe County Board of Education filed suit in the Chancery Court of the First Judicial District of Monroe County against the defendants, appellees herein, who will be referred to as the Ryes for brevity. The purpose of this suit was to remove clouds and confirm title in the Board of Education on two hundred (200) acres of land situated in Monroe County, Mississippi. The Ryes counterclaimed to remove clouds and confirm title in themselves. The chancellor dismissed the Board's complaint and entered judgment for the Ryes on their counterclaim, granting the relief prayed for, cancelling the claims asserted by the Monroe County Board of Education and holding that the Ryes were vested with good title to the lands. Aggrieved at the decision of the lower court, the Monroe County Board of Education appeals here.

Chain of Title

 The land involved in this suit comprises 200 acres in Monroe County, Mississippi, described as

 The E 1/2 of the SW 1/4, and the SE 1/4 of the NW 1/4, and the West 1/2 of the NE 1/4 of Section 21, Township 15 South, Range 17 West.

 On March 7, 1855, the Swamp Land Commission of Monroe County, by its agent Dillingham, conveyed some 3,750 acres, including the subject property, to one James A. Sullivan in fee simple.

 On May 8, 1867, Sullivan conveyed 442 acres of his original acquisition to the president of the Board of Trustees of the 15th Township south of Range 17 West, and to his successors in office, in trust for school use. That conveyance included the 200 acres of land which are the subject of this suit.

 The record does not reflect any other conveyance of any part of the 442-acre tract until March 4, 1878, when the tax collector of Monroe County sold to one Ussery 120 of the 442 acres for delinquent taxes. The 120-acre tract is included in the subject property.

 On April 21, 1879, Sullivan's executor filed a petition for the sale of lands owned by Sullivan at his death. Included in the sworn inventory of Sullivan's real property was all of the subject land.

 On February 5, 1883, the Monroe County Board of Supervisors granted leases on the 442 acres. The 120-acre tract, including forty (40) acres of the subject property, was leased for a term of ninety-nine (99) years to one Rees. Another 200 acres, including one hundred sixty (160) acres of the subject property, were leased for a term of ninety-nine (99) years to Ussery, eighty (80) acres of which were already owned by Ussery in fee simple by virtue of the 1878 tax deed.

 On October 15, 1885, twenty (20) acres of the subject property were sold to one Fitts for delinquent taxes. That tract was included in the 1878 Ussery tax deed and the 1883 Rees lease.

 Title to the subject property passed to appellees Ryes in three separate parcels deraigned as follows:

 PARCEL A

 SE 1/4 of NW 1/4 of Section 21

 This parcel was included in the 99-year lease given in 1883 to Rees by the Monroe County Board of Supervisors. A portion of this parcel (W 1/2 of the SE 1/4 of the NW 1/4) was also included in the 1885 Fitts tax deed. After Rees' death, the Chancery Court of Monroe County ordered the sale of this property to settle his estate. By a deed from the Clerk of the Chancery Court, the unexpired term of the Rees lease was sold in 1901 to F. L. Rye and P. R. Pool. In 1907, F. L. Rye sold his interest to Pool, but the deed covenanted a fee simple conveyance of the land. In 1911, Pool conveyed the land in fee simple back to F. L. Rye. In 1946, F. L. Rye's heirs conveyed the land to Willard Rye and Carl Rye. Finally, in 1961, Willard Rye's heirs conveyed to Carl and Gladys Rye. With the exception of the 1901 deed from the Clerk of the Chancery Court, all the deeds in this chain of title purport to convey fee simple estates, not leasehold estates.

 PARCEL B

 E 1/2 of SE 1/4 of Section 21

 This parcel was included in the 99-year lease given in 1883 to Ussery by the Monroe County Board of Supervisors. A portion of this parcel (S 1/2 of the NE 1/4 of the SW 1/4) was also included in the 1885 Fitts tax deed. There is a gap in the chain of title from 1883 until 1892. In 1892, this parcel was conveyed by one Mayfield to Booth. In 1906, Booth conveyed to I. W. and C. W. Rye. In 1908, C. W. Rye conveyed his interest to I. W. Rye. In 1915, I. W. Rye conveyed this parcel to Barton, less a 30-acre tract which I. W. Rye retained. In 1928, Barton conveyed the parcel, less the 30 acres, to Young. In 1928, Young gave a deed of trust covering this land to Leftwich. (This deed does not appear in the trial record.) In 1930, Letwich foreclosed on the deed of trust and conveyed title to A. G. Rye. In 1939, A. G. Rye conveyed to Willard and Carl Rye. Finally, in 1961, Willard Rye's heirs conveyed the land to Carl and Gladys Rye.

 In 1923, I. W. Rye gave a deed of trust covering his retained 30 acres to Jones, trustee for the Federal Land Bank of New Orleans. In 1933, the bank foreclosed on the deed of trust, and Jones conveyed title to the bank. In 1935, the bank conveyed to A. G. Rye. A. G. Rye then conveyed the 30 acres along with the rest of Parcel B in his 1939 conveyance to Willard Rye and Carl Rye.

 PARCEL C

 W 1/2 of the NE 1/4 of Section 21

 This parcel was included in the 99-year lease given in 1883 to Ussery by the Monroe County Board of Supervisors. There is a gap in the chain of title from 1883 until 1892, when this parcel was conveyed along with Parcel B from Mayfield to Booth. Parcel C follows the same chain of title as Parcel B down through the 1908 conveyance from C. W. Rye to I. W. Rye. In 1921, I. W. Rye conveyed Parcel C to M. I. Rye. In 1922, M. I. Rye gave a deed of trust covering this parcel to Jones, trustee for the Federal Land Bank of New Orleans. (This deed does not appear in the trial record.) In 1933, the bank foreclosed on the deed of trust, and Houston, substituted trustee, conveyed title to the bank. In 1946, the bank conveyed to Willard and Carl Rye. Finally, in 1961, Willard Rye's heirs conveyed the land to Carl and Gladys Rye.

 ISSUES

 The lower court held that the Monroe County Board of Education, in 1867, was without authority to purchase or hold the land and, therefore, the 1867 conveyance to the school board was void. In the alternative, the lower court held that, assuming the validity of the 1867 conveyance, they had acquired title to the subject property by adverse possession against the school board. The Ryes also contend that their record title is made sound by the 1878 and 1885 tax deeds; and that the appellant is now barred by laches or is estopped from asserting its title to the subject property after one hundred (100) years have elapsed. The issues for discussion follow:

 DID THE BOARD OF TRUSTEES OF THE MONROE COUNTY SCHOOLS HAVE AUTHORITY IN 1867 TO ACQUIRE REAL PROPERTY?

 II.

 DID APPELLEES OR THEIR PREDECESSORS IN TITLE GAIN TITLE TO THE SUBJECT PROPERTY BY ADVERSE POSSESSION?

 III.

 DID THE PRIOR TAX SALES OF THE SUBJECT PROPERTY, TOGETHER WITH THE SUBSEQUENT PAYMENT OF PROPERTY TAXES THEREON BY APPELLEES, AFFECT THE VALIDITY OF APPELLANTS' TITLE?

 IV.

 DID THE FACT THAT APPELLEES HAD BEEN IN CONTINUOUS UNDISTURBED POSSESSION OF THE PROPERTY FOR OVER 35 YEARS BAR APPELLANT'S CLAIM UNDER EQUITABLE DOCTRINES OF LACHES OR ESTOPPEL?

 I. - II.

 DID THE BOARD OF TRUSTEES OF THE MONROE COUNTY SCHOOLS HAVE AUTHORITY IN 1867 TO ACQUIRE REAL PROPERTY?

 DID APPELLEES OR THEIR PREDECESSORS IN TITLE GAIN TITLE TO THE SUBJECT PROPERTY BY ADVERSE POSSESSION?

 The lower court held that the school trustees lacked capacity to acquire and hold title, since they had no express or implied power to do so.

 Since the judgment of the lower court will be affirmed for other reasons, we do not find it necessary to address this sticky issue in depth. The 1867 conveyance by Sullivan to the Board of Trustees is in the form of a trust. Even if the school board was without authority to acquire the subject land in 1867, the conveyance would still have been valid as a trust, i.e., the subject land was the corpus and the School System of Monroe County was the beneficiary. The school board's inability to serve as trustee would not have affected the validity of the trust, since a court of equity will not suffer a trust to fail for want of a trustee. Taylor v. Watkins, 13 So. 811 (Miss. 1893) [not reported in State reporter]; Skinner v. Harrison Township, 116 Ind. 139, 18 N.E. 529 (1888). See also McKinnon v. Gowan, 127 Miss. 545, 90 So. 243 (1922); Russell v. Town of Hickory, 135 Miss. 184, 99 So. 897 (1924); McInnis v. Board of Education of Madison County, 242 Miss. 412, 135 So.2d 180 (1961); Board of Education of Itawamba County v. Loague, 405 So.2d 122 (Miss. 1981); In Re Estate of Hall, 193 So.2d 587 (Miss. 1967); Magee v. Magee's Estate, 236 Miss. 572, 111 So.2d 394 (1959).

 Therefore, it appears that the appellees are without grounds to challenge the effectiveness of the 1867 Sullivan conveyance to the Monroe County School Board.

 The lower court alternatively decided that assuming, arguendo, the validity of the conveyance from Sullivan to the Monroe County Board of Education, the Ryes and their predecessors in chain of title acquired a good title by adverse possession.

 The Mississippi Constitution of 1890 contains a provision immunizing the sovereign (state and subdivisions) against the bar of the statute of limitations, which includes the ten-year statutory period for adverse possession. Prior to 1890, there was no such provision protecting the State. Thus, in order to acquire title by adverse possession, there must have been adverse possession for a continuous period of ten years sometime between 1867 and 1890. Again, we do not attempt to determine on the record before us the acts of possession exercised by those persons in possession of the subject lands over 100 years ago and whether or not they were sufficient under the applicable principles of adverse possession law. As stated above, since the judgment will be affirmed for other reasons, we find it unnecessary to discuss this issue further.

 III.

 DID THE PRIOR TAX SALES OF THE SUBJECT PROPERTY, TOGETHER WITH THE SUBSEQUENT PAYMENT OF PROPERTY TAXES THEREON BY APPELLEES, AFFECT THE VALIDITY OF APPELLANTS' TITLE OF PRESUMPTION OF GRANT?

 Under the facts of the instant case, we are of the opinion that there is a presumption that there was a legal liability on appellees and their predecessors in title to pay the taxes tendered over the years by them and, accordingly, there ...


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