(dissenting).
As much as I respect the judgment of my brethren, I must, with deference dissent against some of the conclusions reached in the decision of this case.
It is manifestly correct insofar as it absolves the members of the board of supervisors from any liability on account of the sale of timber. They were exercising a judicial function in making the sale, and in determining the price at which the timber was sold. Beginning with Paxton v. Baum, 59 Miss. 531, this principle has been recognized and reaffirmed throughout the years. See authorities cited on this point in the original opinion.
Hinds is the empire county of, the state. It is the largest both in population and in wealth. The operation of its affairs is big business. The people, of course, choose their supervisors, who are the fiscal and governing authority of the county. Such officers are usually successful and outstanding business men.
The sixteenth section land here involved was in the wilds of Pearl River swamp. It had some timber on it *284•which the Board decided to sell. The Attorney General had previously held that hoards of supervisors were without authority to hire a timber cruiser to determine the timber holdings on such lands, and pay therefor out of sixteenth section funds. Biennial Report of the Attorney General of the State of Mississippi from July 1, 1939, to June 30,1941. It was not claimed that the supervisors knew how to estimate stumpage. It is common knowledge that timber was in great demand. Consequently, the board let the timber buyers know — they advertised for bids in a large newspaper, the Jackson Daily News, in three issues December 10,17 and 24,1943. Although there was great demand for timber, only three bids were submitted at the January, 1944, meeting, one for $250, one for $350, and Dear’s bid for $500. The board accepted the highest and best bid obtainable, and directed the president to execute and deliver the deed. On account of an error — the description had the wrong township— they later executed another deed to correct this error.
The original bill of complaint did not even charge the board with fraud on account of this transaction. On the contrary, the Attorney General agreed to a stipulation that the board "believed then and believes now that it obtained a fair and reasonable value of the timber and the highest and best price available at the time and under the circumstances.”
I do not wonder that, since there was no controversy as to the good faith of the supervisors, the learned chancellor promptly dismissed the bill. There was no evidence of either fraud or bad faith. No doubt if those gentlemen had sworn to their good faith in the proposition, any court would have believed them. But, they did not even have to swear to such fact — the Attorney General admitted it.
Thus the liability of the supervisors passes out of the picture. All are agreed that this was right. They were guilty of no fraud or bad faith. On the contrary, the *285perfect good faith of these capable and competent officers was conceded and adjudicated.
Where then do we find ourselves?
The Board had full authority to sell this timber. General jurisdiction of the subject matter of sixteenth section lands is conferred upon the board of supervisors by Section 6598, Code 1942, which provides in part as follows: “The several counties wherein are situated any of such lands have, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control thereof, and of all funds rising from any disposition thereof heretofore or hereafter made; * *
Express authority to sell the merchantable timber from sixteenth section lands is conferred upon the board by Section 6599, Code 1942, which reads in part as follows: “The board of supervisors having control of any sixteenth section of land or any land taken in lieu thereof reserved for the support of township schools, are hereby authorized and empowered to sell the merchantable timber of any and all varieties, * #
In accordance with these statutes, the board made the sale in good faith — they committed no wrong’ — -they are not answerable for their act.
Now we come, in my opinion, to an untenable position: The state authorized the board to sell the timber. It held out such board as its agent. But two parties are necessary to make a trade, one to sell, and the other to buy. The state found no fault with its agent, the board, in selling it, but, through another of its ag’ents, the Attorney General, it discovered a terrible fraud on the part of the buyer. I repeat that both the board and the buyer were necessary parties to the transaction. It is unthinkable to me that one should be exonerated and the other condemned.
The disparity between the price paid to the board, $500, and the price paid by the Cooperage Corporation, $4,000, thus, on paper, showing a profit of $3,500 to Dear, *286in my opinion, has catapulted us into grave error. This difference can be clarified when we look deeper into the facts, and carefully weigh one feature, which, it s'eems to me, has been entirely overlooked.
The map shows and the stipulation admits that this timber was located in an overflowed area, among sloughs and lagoons. Dear owned “the adjoining property providing the sole access to these lands.” There was no road to this timber land, and there was no earthly way to get it out of the swamp except over the lands of Dear. A prospective buyer must needs take this difficulty into consideration. Likewise, the board of supervisors. Just how would such purchaser remove the timber? I am mindful that Section 8419, Code 1942, provides for the establishment of a private way. But out of the maze of this procedure, the fact remains that such applicant must pay the damages, and the costs and expenses of. the proceedings. Hence such purchaser would have been compelled to reckon with the great difficulty of procuring a right of way or easement from Dear. The board, in selling it, was likewise confronted with this serious obstacle, which, in a large measure, decreased the intrinsic value of the timber on account of its inaccessible location. Accessibility has much to do with value. A seventy-five foot lot on Capital Street might be worth $50,000, whereas a like parcel in a slough or lagoon in Pearl River swamp might not fetch $5.
From a due consideration of this question, I can readily see why the board “believed then and believes now that it obtained a fair and reasonable value of the timber and the highest and best price available at the time and under the circumstances”. The power to sell necessitated an adjudication in regard to value. This was done in good faith. I see no reason to disturb it. But being willing to acquit the seller, I am unwilling to condemn the purchaser. L. N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1, 3, in my opinion, is not only in point, but com*287pletely decisive of this question. There the Court said in part:
“According to the agreed statement of facts, the timber in controversy was worth, in round numbers, the sum of $20,000, or rather, that said sum could have been obtained for it ‘if the board of supervisors had possessed the authority to make a fee-simple title to the entire property, including the soil on which the timber and wood was growing.’ It also appears from this agreed state of facts: ‘The price paid by defendant for the said timber and wood were as much as could have been obtained on the market at that time for the same, in view of the facts that it was growing on sixteenth section lands, the right to cut and remove it was involved in some uncertainty, and the defendant was the owner of the leases.’ The price paid for the timber was $1,550, inadequate, of course; but it is elementary that mere inadequacy of consideration alone is not ground for setting aside a conveyance of this character. Inadequacy of price must be connected with fraud or other circumstances which tend to bring about such inadequacy before the sale can be set aside by the courts. No other circumstance indicating fraud is alleged in the bill or contained in the agreed statement of facts.
“The determination of the price at which such timber shall be sold has been committed by the statute to the boards of supervisors, and in the absence of fraud or collusion the cotirts cannot interfere with their discretion in the matter. And, moreover, when we remember that these leases had 70 years and more to run, during which time the board could not sell, except to or with the consent of the lessee, the inadequacy of price is not so great as it would otherwise seem to be.” (Emphasis supplied.)
In that case the Lumber Company owned the lease. But, if someone else had purchased the timber, the buyer would have faced the question of trespassing on the Lumber Company’s property, if he attempted to remove *288the timber. In Fernwood Lumber Co. v. Rowley, 110 Miss. 821, 71 So. 3, this court approved tbe language used in the Dantzler Lumber Co. case, supra, and said that the right to sell the timber during the lease was “only to, or with the consent of, the lessee of the land”. See also Hood v. Foster, 194 Miss. 812, 13 So. (2d) 652. Thus a consideration of $1550, or 7% percent of the actual value of $20,000 under the circumstances, could not be classed as inadequate.
In this case, if a purchaser other than Dear had brought the timber, how was he to remove it? The only way to do so was over the lands of Dear, who happened to be in a very advantageous bargaining position, both in buying and in selling. If we follow the same reasoning, how are we to overturn a consideration of $500, or 12% percent of the sale price to the Cooperage Corporation, under the circumstances of this case?
The Dantzler Lumber Co. case was followed and reaffirmed in Smith County v. Eastman Gardner Lumber Co., Miss., 53 So. 7; Beasley v. McElhaney, Miss., 53 So. 8; State ex rel. Attorney General v. Dunnam, Miss., 67 So. 461, where again the court said that mere inadequacy of price does not vitiate a sale of timber on sixteenth section lands, and refused to overrule the Dantzler case, supra. It has also been approved and cited in J. J. Newman Lumber Co. v. Robertson, 131 Miss. 739, 95 So. 244; Stokely v. State ex rel. Knox, 149 Miss. 435, 115 So. 563; Matthews v. Panola-Quitman Drainage Dist., 158 Miss. 647, 130 So. 910; Gulf Refining Co. of Louisiana v. Terry, 163 Miss. 869, 142 So. 457; Bridgforth v. Middleton, 186 Miss. 185, 186 So. 837; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So. (2d) 270; Merrill Engineering Co. v. Capital Nat. Bank, 192 Miss. 378, 5 So. (2d) 666; Whelan v. Johnston, 192 Miss. 673, 6 So. (2d) 300; and Taylor v. Jackson, 194 Miss. 441, 12 So. (2d) 44.
The case of Rice v. McMullen, Miss., 43 So. (2d) 195, cited in the original opinion, involved the question of a trust set up under a will, and I do not see how it has any application to the question now being decided. The *289State is trustee of the sixteenth section lands. It delegates to boards of supervisors the power to sell. Such boards, therefore, stand in the shoes of the State: I cannot grasp the idea of the State’s suing itself.
State ex rel. McCullen v. Adams, 185 Miss. 606, 188 So. 551, is also cited in the original opinion. In that case, however, it was a suit brought by the Land Commissioner to cancel, on account of fraud, a patent previously issued by the Land Commissioner. The bill alleged that the application of Mrs. Hunter Adams, by her agent George Adams, made representations which were false, and which induced the issuance of the patent. The answer admitted that the representations were made and were relied on by the Land Commissioner, but averred that they were true. The proof showed that George Adams was in fact purchasing the land for John Adams, but taking the title in John Adams’ wife, Mrs. Hunter Adams, because of the fact that John Adams had already purchased as much land as he could do so for that year; and George Adams was familiar with the land in question. The court said that concealment of the fact that a good portion of the land had been recently cleared was the principal inducement to sell at a grossly inadequate price. John Jourdan was familiar with the land and paid $1600 therefor, whereas the State had been paid only $160. And it was said that this fact should have put him on notice; that the muniments of title, including the fraudulent application for patent, would have disclosed the reason; and besides, he acquired no unconditional warranty.
I fail to see how that case is any authority for the question decided here. How does the paying of $4,000 when its seller had paid only $500* put the Cooperage Corporation beyond the pale of protection?
The examination of the records, if made, led to no evidence whatsoever of fraud, because everything was regular on its face — due advertisement for bids had been made — bids had been submitted — the solemn judgment of the board ordered the sale — and a proper deed was executed.
*290In Koonce v. Board of Sup’rs. of Grenada County, 202 Miss. 473, 32 So. (2d) 264, 456, cited in the original opinion, Eoonce bought timber from the board of supervisors. After cutting a considerable part, he discovered an error in his deed, and sought to correct the same. But the board, in the meantime, learned they had sold the timber for a grossly inadequate consideration and declined to correct the deed. In other words, the board declined to go through with the transaction, but, on the other hand, contested the suit. That case most assuredly is not an authority here, because the Hinds County Board of Supervisors contended that they were in g’ood faith, and had received the best price obtainable, and they still maintained this position when the case was tried.
In Dead River Fishing & Hunting Club v. Stovall, 147 Miss 385, 113 So. 336, also cited in the original opinion, it is true that the rule was laid down that a purchaser of lands must take notice of all facts to which his attention may be directed by recitals contained in the conveyances. But the question there up for consideration was the description of the land. The matter of consideration was not involved at all. It is a strained construction indeed, if that case can have any application here. However, if it does, and if the recitals in the deed were sufficient to give notice of the transaction, what evidence of fraud could be gleaned? Everything was regular on its face-due advertisement for bids — submission of bids — a solemn judgment of the board of supervisors — and a deed valid on its face.
In State ex rel. McCullen v. Tate, 188 Miss. 865, 196 So. 755, cited in the original opinion, again we have a case where the Land Commissioner brought suit to cancel a patent issued by a former Land Commissioner. The application for the patént contained gross misrepresentations of fact, and it was on that account that the patent was issued for a grossly inadequate consideration. But the holder of the office victimized instituted the suit, not a different agency of the State.
*291Brown v. Ohman, Miss., 42 So. (2d) 209, also cited, was simply a case between individuals, wherein recovery was sought on the g’round of fraud and deceit in representations as to the amount of the timber on the land sold. There is no such question involved in the decision which has been rendered in the present case.
Moreover, in State ex rel. Attorney General v. Blodgett, 110 Miss. 768, 70 So. 710, where the Attorney General had brought suit to cancel a sale of timber on Sixteenth Section land, worth $3,000, which had been sold for $500, the court took into consideration the fact that the purchaser surrendered the remainder of his lease upon the expiration of the allotted time. The Court said: “That the board of supervisors had full power in the exercise of its discretion to sell this timber to the lessee of the land, or any one else, was fully settled by this court, in the two cases above cited. The bill and exhibit thereto do not show any fraud or collusion; in fact, the state overlooks entirely a most valuable part of the consideration in its contention, viz., the surrender of the remainder of the lease after the timber has been cut, or at the end of 20 years.”
The decision in this case, to my mind, sets up a peculiar and unusual rule of trade. From time immemorial, barter has been recognized in this country. It is human nature to pay as little as possible for what one buys, and get as much as possible for what one sells. It is rare indeed that one pays more than is required. The hoard was authorized to sell this timber, but it was not required to do so. Even after advertising its intention to sell, it still had the right to reject bids, which were inadequate or unsatisfactory. But, by this decision, I can see no escape from the conclusion that a purchaser cannot rely on the good faith of the board; for, if the Attorney General presumes to think that the consideration is inadequate, such buyer can he pounced upon by that officer. After a good faith sale by the hoard, must the purchaser pay more? If so, how much more?' Must he go to the *292Attorney General and get Ms approval? There is no such provision in the law! I decline, by what I think to be judicial legislation, to empower the Attorney General to overturn the judgment of the tribunal set up by the Legislature to deal with such matters.
Integrity should be given to the acts of the sovereign’s agent in dealing with citizens. In Slay v. Lowery, 152 Miss. 356, 119 So. 819, 821, a patent had been issued by the State for lots slightly in excess of 50 cents each. This Court held that such consideration was not so inadequate as to amount to a donation, in violation of the Constitution. The Court there said: “Appellee is entitled to the benefit of the presumption that the Governor, the attorney-general, and the land commissioner faithfully performed their official duties in fixing the sale value of the lots.” See also State v. Roell, 192 Miss. 873, 7 So. (2d) 867.
Deliberate legislation, solemn judicial construction, and long acceptance of the above principle, have given assurance of safety to the purchasers of timber on, and the leases of, Sixteenth Section lands. Occasionally, there are derelictions on the part of officers. But, as badly as I loathe and despise the unjust, or undeservéd taking of public money or property, I would leave the responsibility where it has been lodged. In the interest of stability, that course should not be departed from. Of course, fraudulent transactions are altogether different matters. I am greatly disturbed over the far-reaching effects of this decision, because I think it is pregnant with serious consequences.
I would affirm the decree of the lower court in its entirety.