Alexander v. Herring
| Decision Date | 22 May 1911 |
| Docket Number | 14758 |
| Citation | 99 Miss. 427,55 So. 360 |
| Court | Mississippi Supreme Court |
| Parties | S. D. ALEXANDER v. L. W. HERRING, ADMINISTRATOR |
APPEAL from the circuit court of Carroll county, HON. G. A. MCLAIN Judge.
Suit by S.D. Alexander against L. W. Herring, administrator of the estate of C. M. Vaiden, deceased. From a judgment sustaining a demurrer to plaintiff is declaration, he appeals.
The facts are as follows:
This is a suit by appellant against appellee, administrator of the estate of C. M. Vaiden, for damages for breach of contract entered into between appellant and appellee, whereby appellant was to operate a sawmill on the estate of said decedent. The contract was to begin February 1, 1909, and end January 1, 1910. On June 1, 1909, appellee paid all amounts due to date and refused to carry out the contract, on the ground that it was not binding. The appellant exhibits an order of the chancery court empowering appellee to operate the sawmill belonging to the estate of the decedent, and to buy and pay for certain timber. The administrator demurred on the ground that the order of the chancellor was ultra vires and void, and conferred no authority upon him to create a charge against the estate of the decedent. The demurrer was sustained, and, plaintiff declining to amend, judgment was entered against him, from which comes this appeal.
Affirmed.
Hill & Coleman, for appellant.
This is an appeal from a judgment of the circuit court sustaining a demurrer to plaintiff's declaration.
There are many grounds of demurrer. In fact the demurrer resembles a bill in chancery, but the grounds relied upon in the court below, and I presume the grounds that will be relied upon here, were the third and fourth grounds of demurrer which are substantially that the order of the chancery court allowing L. W. Herring, administrator, to make the contract sued on is void, and fourth, that the declaration does not set forth that the chancery court had jurisdiction to render such order.
As to the question of jurisdiction it is not an open one in this state, and it is not necessary to allege jurisdiction of the facts of a court possessing general jurisdiction under the Constitution and this question is settled in 72 Miss. Rep 760. The contention that the order is void cannot be sound. The court examined into the matter and discovered from proof that it was the best interests of the minors for their guardian, W. L. Herring, to sell the timber on the land they own, and that the proceeds be used for the education and maintenance of the minors. Therefore it was ordered that L. W. Herring was to sell the timber on certain lands belonging to his wards at not less than fifty cents per one thousand feet on the stump and to render an account of the same to this court, and that the proceeds of the said sale were to be used advantageously for the estate of the said wards.
It appears that L. W. Herring was also administrator of the estate of C. M. Vaiden, deceased, and the order of the court provided how the proceeds were to be applied by L. W. Herring, both as guardian and as administrator. Certainly that was not a void order.
It was sought by the defendant and obtained by him and he undertook to carry it out and made a contract with the plaintiff in this case and the plaintiff in this case alleges a breach of his contract and sues for the damages resulting therefrom, and in the declaration did not allege that the chancery court of the second district of Carroll county had jurisdiction of the estates of minors, nor allege any facts showing said jurisdiction. Because the chancery court of Carroll county is a court of general jurisdiction, and has control of all minor's business, and all matters of administration, and under the authority cited, and several others, it is unnecessary to make any such allegations.
McLaurin, Armistead & Brien, for appellee.
We insist that the demurrer in this case was well taken and that the lower court acted properly in sustaining this demurrer. The declaration unquestionably states no cause of action for the reason that this order of the chancery court authorizing the administrator, appellee, to make the contract sued on is void; and if the administrator, appellee, had no right to make such a contract, the contract is void and the order of the chancery court attempting to confer the power upon the administrator is likewise void. We insist that the chancery court had no jurisdiction whatever to authorize any administrator to operate a sawmill on the land of a decedent, and to incur expenses of employees in a mere speculative venture. No authority of law that we have been able to find confers upon the chancery court any such jurisdiction. We therefore say that the grounds of the demurrer are unquestionably well taken. The lower court took this view on the ground that there was no authority of law for the administrator to make any such contract and that no such authority could be conferred upon him by the chancery court, and therefore the estate which the administrator represented, the minors, who were the heirs of the land, could not be made to pay a judgment rendered on such contract. The court will observe that in said order of the chancery court referred to, the language is used that said timber is to be paid for at a sum not greater than fifty cents per thousand feet on stump where cut; showing that this timber was a part of the realty with which the administrator has nothing in the world to do ordinarily; that standing timber upon land is a part of the land we suppose appellant will not deny, and this being so, we contend that an administrator, such as is shown in this case, exercising the ordinary powers of an administrator, has nothing in the world to do with the real estate of the decedent except to sell it to pay debts and that the chancery court has no right to authorize any administrator to sell real estate of the decedent except to pay debts. This principle has been so fully established that it hardly needs the citation of authority.
"An administrator has nothing to do with the land of an estate except under an order to sell to pay debts." Herring v. Harris, 45 Miss. 62.
McPike v. Wells, 54 Miss. 136, 149.
Lands descended directly to the heirs of the deceased. When a necessity arises to deal with it as assets they must have notice. McPike v. Wells, 54 Miss....
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