40 Miss. 210 (Miss. 1866), Learned v. Matthews

Citation:40 Miss. 210
Opinion Judge:ELLETT, J.
Party Name:C. E. LEARNED and Others v. J. R. MATTHEWS
Attorney:H. B. Mayes, for plaintiff in error, contended, W. P. Harris and Hurst, for defendant in error.
Court:Supreme Court of Mississippi

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40 Miss. 210 (Miss. 1866)

C. E. LEARNED and Others



Supreme Court of Mississippi

April, 1866

Error to Circuit Court of Copiah county. Hon. John E. McNair, judge.

The opinion of the court recites fully the facts of the case.

Judgment reversed and new trial ordered.

H. B. Mayes, for plaintiff in error, contended,

1. That the Probate Court of Copiah county never acquired jurisdiction by virtue of the special act for the relief of Harris, because the probate judge in Hinds did not transfer and transmit to the court in Copiah county, a full and complete record of the administration of Harris.

The intestate of Harris was domiciled at the time of his death in Hinds county. The Probate Court of that county had jurisdiction to grant administration; the jurisdiction was exclusive, and became so, in the strictest sense of the term, by the grant of administration to Mrs. Learned. Hutch. Code, 655, section 54. Wright v. Beck, 10 S. & M. 281.

Whatever jurisdiction, then, the Probate Court of Copiah had, it acquired by virtue of the special act of the legislature. "Where statutory powers are conferred upon a court of inferior jurisdiction, and a mode of executing those powers is prescribed, the mode pointed out must be strictly pursued, or the acts and judgments of the court are coram non judice, and void." White v. Conner, 5 Blachford, 462, 469; Baron's Abdg. 261; 1 W. W. Story's R. 487; 1 Story's Eq., sections 96-177; Williamson v. Williamson, 3 S. & M. 447.

2. It was insisted that the petition of Buckner Harris, filed the 19th day of April, 1841, praying an order for the sale of the real estate of Learned, deceased, was finally dismissed, as to the lands in Copiah county, at the June Term, 1841, and the subsequent proceedings had on said petition by citation returnable to August Term, 1843, and the decree then made for the sale of the lands was and is void.

"If at any time the Probate Court may open and reverse its own judgments, litigation would be endless." Smith v. Denson, 2 S. & M. 339; Trambull v. Endicott, 3 S. & M. 303; Griffiths, admr., v. Vertner, 5 How. 741; Austin v. Lamar, 23 Miss. 190; Singleton v. Garrett, 23 Miss. 195.

3. That the failure to have the sale reported and ratified at the Term next succeeding the sale, was fatal to the title of defendants in error. Robb v. Halsey, 11 S. & M. 140; 30 Miss. 263; Smith v. Peasen, 2 S. & M. 338; Heel v. Coursery, 26 Miss. 520.

4. On the question of adverse possession the following authorities were cited; Hutch. Code, 830, section 5; 1 S. & M. 219, 530; 1 How. 561.

W. P. Harris and Hurst, for defendant in error.

1. That the special act of the legislature, for the relief of Buckner Harris, gave the Probate Court of Copiah county jurisdiction of the administration of the estate of Learned, deceased.

That the transfer of the jurisdiction from the Probate Court in Hinds was not made to depend upon the character of the transcript sent; that the act annexed no such conditions to the assumption of jurisdiction.

This special act is different from that which is discussed in Williamson v. Williamson, 26 Miss. There the act made the giving of a bond, an indispensable condition precedent to the assumption of jurisdiction.

2. That the sale of the lands is shown to be valid as to notice, and fair and bona fide. The court has jurisdiction to decree the sale, and a sale was made in accordance with law and the decree of the court.

That the act of the administrator, a ministerial officer, in a matter not pertaining to the manner in which he had executed the decree of the court, but in making timely report of the execution, should render the sale inoperative and void; such a doctrine finds no analogy and sanction in any system of jurisprudence.

The statute requires a report at the next succeeding Term. "Suppose the administrator should die between the sale and the time for making his report?" This is not an improbable event. Would the sale be void? There could be no report in such case, and yet the sale may be contested and set aside, or confirmed, nevertheless. The court has acquired jurisdiction; the sale has been made and the deed executed. Can it be contended that the law was in such a state, that this probable event, or other casualty interposing to prevent a report at that particular time, would render the previous proceedings abortive?

It is analogous to chancery sales, and the failure of the commissioner to report the sale would not avoid it, nor render the court powerless to obtain information of it. Eldridge v. McMakin, 38 Miss. 72.

That confirmation of the sale must be presumed from lapse of time. Matthews on Presumptive Evidence, 217, 218; 467, 468.

Parties interested, according to the principle in analogous cases, will be held to have received confirmation of the sale. Gardner v. Lee, 26 Miss.


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The plaintiffs in error on the 17th day of August, 1858, commenced

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an action of ejectment, in the Circuit Court of Copiah county, against the defendant in error, to recover a tract of land in said county, containing two hundred and sixty acres, and being the north half of the north-east quarter of section three, township nine, range seven east; the south-east quarter of section thirty-four, and the west half of the south-west quarter of section thirty-five, township ten, range seven, east. The defendant pleaded not guilty. At October Term, 1860, a verdict was found for the defendant, and the plaintiffs moved for a new trial, on the ground that the court erred in overruling the motion of the plaintiffs to rule out the evidence offered by the defendant. The motion for a new trial was overruled by the court, and a bill of exceptions was signed setting forth the evidence given and the proceedings had upon the trial. From this bill of exceptions it appears that the plaintiffs proved the entry of the land in controversy, in the United States Land-office, by Edward D. Learned, in 1835 and 1836; and also that the said Edward D. Learned was married on the last day of January, 1825, and died on the 27th of September, 1837; and that the plaintiffs--Charles E. Learned, who was born May 15, 1826, and Rufus F., who was born December 26, 1834--are his only surviving heirs-at-law.

It was agreed that all the evidence on the part of the defendant should be given subject to be excluded and ruled out by the court, on motion of the plaintiffs, after the evidence on both sides should be finally closed, when all objections to the evidence should be stated, argued and submitted, as though taken at each step in the progress of the cause.

Subject to this agreement, the defendant gave in evidence an act of the legislature of the State, approved February 13, 1840, entitled "An act for the relief of Buckner Harris," as follows:

"Whereas, the Honorable Buckner Harris has become the administrator in the county of Hinds, of the estate of the late Edward D. Learned, deceased; and whereas the estate of the said deceased consists chiefly of land which is situate in the county of Copiah, where the said Buckner Harris resides; and whereas it is attended with great inconvenience to said administrator

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(being a public functionary), to attend the Probate Court of said county of Hinds, and would be to the advantage of said estate to have the same administered in the county of Copiah.

Therefore, Sec. 1. Be it enacted, etc., That the judge of probate in and for the county of Hinds be and he is hereby authorized and required, at the cost and charges of the said Buckner Harris, to transfer and transmit to the judge of probate of the county of Copiah, a full and complete copy of the record of all proceedings heretofore had in the Probate Court of said county of Hinds, in relation to the estate of said Edward D. Learned, deceased, together with the original administration bond entered into by said Harris.

Sec. 2. Be it, etc., That the probate judge in and for the county of Copiah, be and he is hereby authorized and required to receive said record and original bond, and to enter the same on the records of this court, and to require the said Buckner Harris to administer and conduct the affairs of said estate, and account for the same, in the same manner as if letters of administration had been originally granted by the Probate Court of the county of Copiah.

Sec. 3. Be it, etc., That this act shall be in force from and after its passage.

The defendant then gave in evidence an order of the Probate Court of Copiah county, at April Term, 1841, "that the transcript of the proceedings of Buckner Harris, administrator de bonis non of the estate of Edward D. Learned, deceased, from the Probate Court of Hinds county, be received and filed for record."

Also a copy of the said transcript, which contains the bond given by B. Harris as administrator de bonis non of E. D. Learned, dated July 22, 1839, and purports to contain "the proceedings had and done in relation to the estate of Edward D. Learned, deceased, in the Probate Court of Hinds county, since Buckner Harris, the administrator de bonis non, has taken the estate into his charge;" and it is certified by the clerk of the Probate Court of Hinds county, to be a true copy from the records of his office, "so far as Buckner Harris, administrator de bonis non, has administered said estate."

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Defendant also gave in evidence a copy of a petition filed by Harris, as administrator de bonis non of Learned, in the Probate Court of Copiah county, at April Term, 1841...

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