Belt v. Adams

• Decision Date: 21 February 1921
• Citation: 87 So. 666,125 Miss. 387
• Court: Mississippi Supreme Court
• Parties: BELT et al v. ADAMS

87 So. 666

125 Miss. 387

BELT et al v. ADAMS

Supreme Court of Mississippi

February 21, 1921

On suggestion of error. Suggestion of error overruled. For former opinion, see 86 So. 584.

Suggestion of error overruled.

OPINION

ETHRIDGE, J.

This cause was considered and an opinion written reversing and remanding the cause in Belt v. Adams, 124 Miss. 194, 86 So. 584, in which opinion a full statement of the case is made, and as there is no complaint made in the suggestion of error as to the statement of the case in the former opinion, it is referred to for information as to the facts.

A suggestion of error was filed, challenging practically every proposition of law as announced in the former opinion.

The case comes here on bill and demurrer, and the opinion is to be considered and understood in connection with the allegations of the bill to which a demurrer was sustained, by which, of course, the allegations of the bill stand confessed.

The former opinion proceeded upon the theory that the bill constituted a direct attack upon the suit filed by Mrs Jenkins referred to in the former opinion. It is insisted that this suit is a collateral attack because Mrs. Jenkins and her heirs were not made parties to the suit, and that this was necessary in a suit not making a direct attack upon the judgment.

The bill in the present case alleged that prior to the sale in the former suit Mrs. Jenkins was paid in full and her claim satisfied, which of course, if true, removed any interest she may have growing out of the present litigation. The general rule, however, is that the nonjoinder or misjoinder of parties must be raised by plea, and if the defendants deem the joinder of Mrs. Jenkins, or her heirs necessary, they may set forth in their pleadings a suggestion of their necessity and raise the question by plea.

The defense of the defendants in the present case is principally grounded upon the statutes of limitation and pleadings of estoppel, or questions involving estoppel, both of which are affirmative defenses which must usually be set up either by plea or answer, as must likewise the question of the bona fides of the defendant in acquiring the title.

It may not be true that the complainants were not served with process in the former suit, but the bill in the present case alleges that they were not and that they had no knowledge of such suit until very recently. The pleadings in the former suit on the part of the complainant therein set forth by allegation that Belt, to whom the complainant's intestate had sold the property there described, has died testate in the state of Georgia, and that Mrs. Belt was executrix in his will, and that the children were minors.

It is true that the bill did not set forth the will either in detail or in substance, but it did allege enough facts with reference to the will to show its existence and where information could be obtained. The will was probated in Mississippi only after the death of the executrix, who was also, under the terms of the will, the owner of the estate for life, charged by the terms of the will as executrix with the duty of paying the testator's debts. An investigation might have disclosed all the facts charged in the bill. If it would not have done so, that is a matter of defense and proof.

In the former opinion we pointed out many defects in this former suit. Indeed, it may be with propriety denominated "a tragedy of errors." These errors, to which attention was called, each of which we think is a warning to purchasers tracing their title to this proceeding to pause, reflect, beware. All of the defects pointed out in the former opinion were not such defects as would render the sale absolutely void, but they were such defects as ought to cause a reasonably prudent person to investigate before buying this property.

The bill filed was for a considerable sum of money and sought to establish a lien upon a large quantity of land. The fact that the sale made under the purported decree was for a mere trifle compared with the value of the land and compared with the amount of the debt is, we think, such a circumstance as might cause a prudent man to make some inquiry.

The further fact that the sale was made by a commissioner who was also attempted to be made guardian ad litem for the minors, and that the lands sold under such sale was bought by the executrix, who was charged by the terms of the will with the duty specifically of paying the debts, and who was given by the terms of the will a life estate in the property, seems to us to suggest bad faith and fraud.

It is true that it is not every sale at which an administrator or executor might buy to the prejudice of the heirs or wards, would render such sale void. But if the parties are minors and are in court, they would have the right at any time during their minority or within the given period thereafter to repudiate such sale and hold the purchaser a trustee, even though such purchaser paid full or fair value for it at the time of the sale.

The rule as applied to that state of case is well stated in the case of Memphis Stone & Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, where it is said:

"The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase is not confined to trustees or others who hold the legal title to the property to be sold; nor is it confined to a particular class of persons such as guardians, trustees or solicitors, but it is a rule which applies universally to all who come within its principle; which principle is that no party can be...