Belt v. Adams

Decision Date29 November 1920
Docket Number21253
Citation124 Miss. 194,86 So. 584
CourtMississippi Supreme Court
PartiesBELT ET AL. v. ADAMS

October 1920

1 PROCESS. Publication in lieu of summons must strictly comply with statute, and failure to do so is not cured by recitals in decree.

It is a well-settled law in this state that when a notice is to be given in lieu of personal summons all the requirements of the statute must be strictly complied with in order to give jurisdiction of the person. This being a jurisdictional matter, it is not cured by a recital in the decree that notice was given against a direct attack on such decree.

2. VENDOR AND PURCHASER. Payment of debt before sale under vendor's lien avoids sale.

Where a bill was filed to establish and foreclose a vendor's lien, and where the debt was adjudged and a sale ordered, the payment of the debt before sale discharges the power, and a sale made subsequent thereto is void.

3 INFANTS. Proof required to bind minors in suit to establish vendor's lien stated.

Where a suit is filed in the chancery court to establish a vendor's lien in which infants are parties defendant proof must be taken to establish the indebtedness, and that it is a legal charge on the land, and the mere note sued on is not sufficient for this purpose.

4. EXECUTORS AND ADMINISTRATORS. Executor cannot purchase at chancery sale to pay debts, and his vendees do not acquire title.

Where a person is made an executor of a will and is directed in the will to pay the debts, and has sufficient funds from the estate to pay such debts, such executor is not permitted to allow a sale to be made and buy under such sale; and purchasers from such executor will not acquire a title good against the devisees or heirs of the testator, but take only such title as the purchaser acquired.

5 INFANTS. Vendor and purchaser. Guardian's ad litem duty to represent infant throughout litigation; guardian ad litem not qualified to act as commissioner to foreclose vendor's lien.

Where a person is appointed guardian ad litem for infants, it becomes his duty to represent the infant throughout the litigation, and he cannot act as a commissioner to make a sale of property in which the wards have an interest in such suit. The duties of the guardian ad litem and the duties as commissioner are inconsistent and conflicting, and a sale so made will not be upheld.

6. LIFE ESTATES. Life tenant and vendee in possession prevent statute running against remaindermen.

Where a life tenant conveys by deed or mortgage, and her vendee goes into possession, such possession is rightful during the life of the life tenant, and in such case the statutes of limitation do not begin to run against the remaindermen until the death of the life tenant. [Copyrighted Material Omitted]

APPEAL from chancery court of Tallahatchie county, HON. W. F. GEE, Chancellor.

Suit by C. I. Belt and others against J. C. Adams. Decree for defendant, and plaintiffs appeal. Reversed and remanded.

The appellants filed a bill in the chancery court of Tallahatchie county against the appellee for the possession of certain lands and for rents thereon from 1917 to the date of the filing of this suit. The bill alleged that the appellants are children and representatives of children of L. Carlton Belt, who died in 1862 in Bullock county, Ga., which county was his domicile, and that he died seized and possessed of certain lands in Tallahatchie county, Miss., purchased from Wiley and W. A. Jenkins for a consideration of nine thousand dollars; that the sail L. Carlton Belt died testate leaving a will, a copy of which is made an exhibit to the bill, by which will a life estate in all of his property was given to Mrs. E. T. Belt, widow of the testator and mother of the children, and that the remainder in fee on the termination of said life estate went to the children of the testator; that the will was duly probated in the state of Georgia in the year 1862, but was not probated in Mississippi until 1918, when it was filed for probate. Mrs. E. T. Belt, the life tenant, died in 1917, a short while before the filing of the bill, and the complainants alleged that they had no knowledge of the claim of the appellee to said lands until after their mother's death in 1917.

The bill further alleges that in 1869 a suit was filed by Margaret Jenkins, administratrix of Wiley Jenkins, in the circuit court of Tallahatchie county, on the equity side of said court, to establish and foreclose a vendor's lien on the said lands for the purchase money, alleging that W. A. Jenkins had assigned to Wiley Jenkins his interest in the note sued on, and alleging that L. Carlton Belt departed this life testate in the state of Georgia, and that he appointed his widow, Elizabeth T. Belt, executrix of his last will and testament, but that the said executrix had never qualified under the said will in this state, nor had any administration been had on said estate in this state. It further alleged that one of the notes remained unpaid, except for the credit of five hundred dollars, which was paid on the 14th day of February, 1867.

It was further alleged that Talbert C. Belt, Willie B. Belt, and Lloyd I. Belt are minors under the age of twenty-one years, and that they are without a guardian appointed by the laws of this state; and the bill prayed for publication according to law be made to the parties defendant to the bill, and that on legal proof thereof that the court would appoint a guardian ad litem to answer for and protect the interest of the minors, and that on final hearing a commissioner be appointed to make sale of said lands.

It is further alleged in the bill in the present suit that no notice was ever made to the minor children, and that no order for publication had been made by the chancery court. The proceedings in Margaret Jenkins v. Elizabeth T. Belt were made exhibits to the original bill in this cause; the proceedings under said suit so made exhibit being a copy of the final record in said cause in Tallahatchie county, Miss. Under caption of "Proof of Publication," filed November , 1870, is the following:

"Margaret Jenkins to the Tallahatchie News Office, eighteen dollars and ninety cents, Charleston, Miss., November 16, 1870. Advertising, four squares, one dollar and fifty cents per square first insertion, each additional insertion, eighteen dollars; magistrate fees for affidavits, etc., ninety cents--eighteen dollars and ninety cents."

Then follows the affidavit as follows:

"State of Mississippi, Tallahatchie County.

"Personally appeared before me, M. W. Byers, justice of the peace in and for said county and state, L. G. Polk, one of the publishers of the Tallahatchie News, a public newspaper published in the town of Charleston, state and county aforesaid, who being sworn says the advertisement, a copy of which is hereto affixed, was published in said paper as follows:

"From No. 43, Vol. 9, dated October 29, 1870.

"From No. 44, Vol. 9, dated November 5, 1870.

"From No. 45, Vol. 9, dated November 12, 1870.

"From No. 45, Vol. 9, dated November 19, 1870.

"Sworn to and subscribed before me this the 28th day of November, A. D. 1870.

"BOOTH & POLK.

"[Publication notice missing from papers.]

"State of Mississippi, Tallahatchie County.

"I, M. W. Byers, justice of the peace, in and for said county, do hereby certify that the newspapers containing the advertisement referred to in the above affidavit have been examined and collected by me, and that the advertisement has been correctly published as therein stated.

"Given under my hand and seal this the 28th day of November, 1870.

"M. W. BYERS, J. P.

[Seal.]"

Then follows the affidavit of D. M. White as follows:

"December 7, 1870.

"Affidavit of Clerk.

"Margaret Jenkins, Adm'x, v. Elizabeth T. Belt et al.

"This day personally appeared in open court D. M. White, Clerk of this court, who makes oath as required by the rule of this court, that he forwarded by mail as required by law to the defendants in the above cause at their stated residence, Augusta, Georgia, the order of publication taken at rules in the above cause.

"[Signed]

D. M. WHITE, Clerk.

"Sworn to and subscribed before me this the 7th day of December 1870.

"J. F. SIMMONS, Chancellor."

Thereupon the following, called a pro confesso, was taken against all of the defendants in which it is recited:

"It appearing to the court that the defendants in the above suit are nonresidents, and that they have been cited to appear at the present term of this court by publication made according to law and the order of publication sent by mail to their place of residence in the state of Georgia as required by law, etc.

"It is ordered that the allegation of the bill of complaint be taken as confessed. The clerk will please enter the above pro confesso.

"W. S. Eskridge, Solicitor for Complainant."

This is followed by an order on November 30th for the clerk and master to take and state an account showing the amount due complainant to this term. Then follows the report showing:

"Principal

$ 2,500 00

Interest, eight years, eleven months

1,337 95

Total due

3,837 95

And this is followed by the words:

"Correct balance, $ 4,271.60.

"[Signed]

D. M. WHITE, Clerk."

Then is followed a motion to appoint guardian ad litem for Talbert C. Belt, Willie B. Belt, and Lloyd I. Belt, minor defendants in the above suit to protect their interest. No order appointing a guardian ad litem appears in the record, but an answer by D. M. White, signed as guardian ad litem, stating that he is ignorant of the matter set forth in the bill of complaint, and calls for strict proof in such matters, and asks the court to protect their interest.

Then follows a decree signed by J. F....

To continue reading

Request your trial
27 cases
  • Wirtz v. Gordon
    • United States
    • Mississippi Supreme Court
    • December 5, 1938
    ... ... 590, 171 So. 544; ... Mississippi Digest, title Executors and Administrators, 144; ... Buckingham v. Wesson, 54 Miss. 526; Belt v ... Adams, 124 Miss. 194, 86 So. 584; Mississippi Digest, ... title Executor and Administrator, 133; Columbus Banking & ... Ins. Co. v ... ...
  • Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co.
    • United States
    • Mississippi Supreme Court
    • January 14, 1935
    ...89 So. 520; Section 7033, Code of 1930; Section 4834, Code of 1906: Langstaff v. Town of Durant, 122 Miss. 471, 491; Belt et al. v. Adams, 124 Miss. 194, 202; Miss. Railroad Commission et al. v. G. M. & N. R. R. Co., So. 212; Burns v. Burns, 133 Miss. 485, 97 So. 814. The Mississippi Railro......
  • Wise v. Herzog
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 15, 1940
    ...271 Mich. 500, 261 N. W. 77; Mintz v. Ladendorf, 247 Mich. 546, 226 N.W. 258; Ernst v. Colburn, 84 Colo. 170, 268 P. 576; Belt v. Adams, 124 Miss. 194, 86 So. 584. 13 McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 14 Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632......
  • Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co
    • United States
    • Mississippi Supreme Court
    • March 25, 1935
    ... ... Livingston, 89 So. 520; Section 7033, Code of 1930; ... Section 4834, Code of 1906; Langstaff v. Town of ... Durant, 122 Miss. 471, 491; Belt et al. v ... Adams, 124 Miss. 194, 202; Miss. Railroad Commission ... et al. v. G. M. & N. R. R. Co., 155 So. 212; Burns v ... Burns, 133 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT