Bd. of Educ. of Calhoun County v. Warner, et al.
| Docket Number: | 2002-CA-00122-SCT Linked Case(s): 2002-CA-00122-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-26-2003 Opinion Author: Cobb, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Real property - Sixteenth section lands - Predecessors in title - M.R.C.P. 56 - Skeletonized abstracts - Election - Section 29-3-7 - Doctrine of presumption of grant - Necessary party Judge(s) Concurring: Smith, P.J., Waller, Diaz, Easley, Carlson and Graves, JJ. Dissenting Author : McRae, P.J. Concurs in Result Only: Pittman, C.J. Procedural History: Summary Judgment Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 12-20-2001 Appealed from: Calhoun County Chancery Court Judge: Michael Malski Disposition: Chancellor granted summary judgment in favor of the Appellees. Case Number: 91-288 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Board of Education of Calhoun County, Mississippi |
ROBERT H. COMPTON
CHARLES JIM BECKETT |
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| Appellee: | James Sidney Warner, Gwendolyn V. Warner, Oliver Poe, Earnestine Winter, Nancy Poe and Lisa Poe Baker | DAVID L. CALDER KENNETH A. RUTHERFORD |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Sixteenth section lands - Predecessors in title - M.R.C.P. 56 - Skeletonized abstracts - Election - Section 29-3-7 - Doctrine of presumption of grant - Necessary party |
| Summary of the Facts: | In 1991, the Calhoun County Board of Education brought suit against various members of the Poe and Warner families to quiet and confirm title to three tracts of Calhoun County 16th section land. Following a hearing in 1992, the original chancellor found that the parties agreed that the matters before the court primarily involved a question of law and that a motion for summary judgment would thus be an appropriate action. In May 1998, when Poe and Warner moved for summary judgment, the Board filed a counter-motion for partial summary judgment. A special chancellor found for Poe and Warner and denied the Board’s motion. The Board appeals. |
| Summary of Opinion Analysis: | Issue 1: Predecessors in title The asserted chains of title are supported by Poe and Warner by way of photocopies of various documents, none of which are notarized or accompanied by any affidavit attesting to its authenticity or origin except for those in Exhibit M, which are certified by the Secretary of State’s office. The Board argues that Poe and Warner presented inadequate proof of any movement of title from the State to private owners, insofar as they offered only “mere skeletonized abstracts” as proof. Under M.R.C.P. 56, a party must move to strike an affidavit that violates the rule. Otherwise, he will waive his objection and the court may consider the defective affidavit in the absence of gross miscarriage of justice. The Board did not move to strike the photocopies and therefore waives its objection. In the case of Creekmore v. Neshoba County, 216 Miss. 589, 63 So. 2d 45 (1953), the Court held that the sort of “skeletonized abstracts” that this case presents were inadequate. Without the abstracts, there can be no evidence that the property was actually occupied during the period in question. Another problem for Poe and Warner’s argument is that the 1871 statute authorizing sales of 16th Section lands did not do so unconditionally, but rather by way of authorizing the school directors to conduct an election in any township as to whether that township’s 16th Section lands should be sold, with a majority vote being required to put them up for sale. No evidence has been offered that such an election was ever conducted in Township 23, which includes the disputed lands. Poe and Warner argue that under section 29-3-7, the Board has the burden to affirmatively show that there was no election held. However, their argument hinges on that statute’s having application before 1890, when the new state constitution forbade adverse possession against the State. Therefore, the land would have to have been adversely possessed for 25 years before 1890. But since the school lands could have been sold in fee simple only from 1871 to 1878, it is not possible that the presumption that the law authorizing the disposition of the lands has been complied with could have arisen, since no such law existed before 1871. Because adverse possession claims will not be sustained with inadequate evidence, the chancellor’s finding of adverse possession is reversed. Issue 2: Presumed grant Poe and Warner rely on the doctrine of presumed (lost) grant. The purpose of the doctrine is to quiet title after long possession. Its applicability depends upon possession under a claim of right, actual, open, and exclusive, and a chain of conveyances and payment of taxes are important. However, payment of taxes is not a clear act of ownership in the context of 16th Section lands. The greatest practical difference between adverse possession and the doctrine of presumption of grant is that the latter allows assertions of claims against the sovereign, despite statutes barring adverse possession against the State. The doctrine cannot apply to the Tract 3 land, because it was illegally conveyed by the State in 1938, in contradiction of section 211 of the 1890 Constitution. The facts of this case stretch the doctrine of presumptive grant to the breaking point. It is possible that title was passed during the window period in the 1870s, but it is equally possible that no such title passed, but rather only a lease interest. Poe and Warner supply only “skeletonized abstracts” and scarcely legible photocopies which are inconclusive as to the exact interest conveyed, fee simple or leasehold, and the authority to do so. Therefore, the presumption of lost grant is inapplicable in this case due to the extensive chain of inferences required to so hold. In addition, a common law presumption should not be used to defeat a constitutional and statutory interest in, and duty towards, the lands held in trust for the schoolchildren of Mississippi. Issue 3: Necessary party The State and the Board argue that the chancellor erred in failing to find that the State should have been joined as a necessary party. The State is the ultimate fee-holder of 16th Section lands and is therefore a necessary party to any action that might forever divest it of title in those lands. When Poe and Warner counterclaimed for clear title on their behalf, the suit became one that endangered the State’s interest in protecting its asserted title to 16th Section lands. At that point, the issue went beyond merely the Board’s power to file suit, and the State became a necessary and indispensable party. Therefore, the court erred by not joining the Secretary of State as a necessary and indispensable party in the action. |
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