Clapper v. Powers, 39417

• Decision Date: 07 February 1955
• Docket Number: No. 39417,39417
• Citation: 222 Miss. 878,77 So.2d 808
• Parties: James F. CLAPPER et al. v. Joseph P. POWERS et ux.
• Court: Mississippi Supreme Court

Page 808

77 So.2d 808

222 Miss. 878

James F. CLAPPER et al. v. Joseph P. POWERS et ux.

No. 39417.

Supreme Court of Mississippi.

Feb. 7, 1955.

Satterfield, Ewing, Williams & Shell, Jackson, for appellants.

Hall & Callender, Columbia, for appellees.

HOLMES, Justice.

The appellants, James F. Clapper, Kathryn Kaiser (Mrs. W. J. Kaiser), Sophia Oettinger and Mollie Oettinger, filed their original bill of complaint in the Chancery Court of Pearl River County against Joseph P. Powers and his wife, Mrs. Alice M. Powers, alleging that they were the owners of an undivided three-fifths interest in 160 acres of land in Pearl River County, and seeking to cancel as clouds upon their asserted title all claims of the defendants thereto. By an amendment to the original bill, William J. Clapper and Harold Clapper, adult heirs at law of John R. Clapper, deceased, were named as additional defendants to the original bill.

It was alleged in the original bill that Mrs. Mary Clapper died intestate on May 28, 1939, leaving surviving her as her sole and only heirs at law five children, namely, James F. Clapper, Kathryn Kaiser, Mrs. J. M. Durst, John R. Clapper, and Mrs. Alice M. Powers; that at the time of the death of the said Mrs. Mary Clapper, she was the owner of the land in question, and that each of her five surviving children inherited an undivided one-fifth interest therein; that Mrs. J. M. Durst died intestate on July 16, 1950, leaving surviving her as her sole and only legal heir her husband, John M. Durst; that the said John M. Durst died November 14, 1950, leaving a last will and testament wherein he devised his estate to the said Sophia Oettinger and Mollie Oettinger; that the said John R. Clapper died intestate December 25, 1946, leaving surviving him as his sole and only heirs at law his adult sons, Harold and William Clapper.

It was further alleged in the original bill that following the death of the said Mrs. Mary Clapper the said Mrs. Alice M. Powers was appointed and qualified as the administratrix of the estate of the said Mrs. Mary Clapper, deceased, on October 9, 1939; that on October 13, 1939, the said Mrs. Alice M. Powers probated a claim against the estate of the said deceased for $670.06; that thereafter, on the petition of the administratrix, the said land was sold to pay the debts and expenses of administration of the estate, it appearing that the deceased at the time of her death owned no personal property; that at the said sale, the land was unlawfully purchased by H. H. Parker, who was the attorney for the administratrix; that the consideration for said sale was grossly inadequate; that at said sale, competitive bidding was discouraged, suppressed and prevented by the administratrix; that two days after the sale the said H. H. Parker, for a nominal consideration, attempted to convey the land to a nominal party, namely, one Clement Powers, and that said conveyance was for the purpose of attempting to hold title for said administratrix until such time as she should be discharged and that the said Clement Powers was so acting and holding title for and on behalf of said administratrix; that after a final decree had been entered in the administration of the estate approving the administratrix's final account, and prior to her discharge, the said Clement Powers attempted to convey the land to the appellees, Joseph P. Powers and his wife Alice M. Powers; that the sale of said property was in fraud of the rights of the heirs of the said Mrs. Mary Clapper, deceased, and that the attempted purchase of said property by the said Joseph P. Powers and his wife, Alice M. Powers, was fraudulently concealed from the appellants by the appellees, and could not by reasonable diligence have been discovered by the appellants until after January 20, 1944, the date of the recording of the deed from Clement Powers to the appellees; that the conveyance to H. H. Parker by the administratrix pursuant to his purchase at the sale, and the conveyance by H. H. Parker to Clement Powers, and the conveyance by Clement Powers to Joseph P. Powers and his wife, Alice M. Powers, were either null and void, or that they inured to the benefit of the appellants as cotenants.

The prayer of the bill was that the court decree that the appellants were the owners of an undivided three-fifths interest in said land, and that all claims of the appellees thereto be cancelled as clouds upon the title of the appellants.

The answer denied the material averments of the bill and incorporated therein pleas setting up in bar of the action the two years statute of limitation rleating to court sales, the ten years statute of limitation, the doctrine of estoppel under Section 598 of the Mississippi Code of 1942, and the doctrine of res adjudicata, based upon the claim that the decree of the chancery court confirming the sale, after due notice to and service of process upon the interested parties, who were adults, was final and conclusive and binding upon all of the heirs and could not be collaterally attacked.

After a full hearing upon all of the issues involved, the chancellor made a special finding of facts and stated his conclusions of law thereon and rendered a decree dismissing the bill of complaint. The appellants appeal from the decree rendered.

The appellants contend that the purchase of the land by Joseph P. Powers and his wife, Alice M. Powers, was in violation of Section 619 of the Mississippi Code of 1942, providing that an administrator shall not acquire title to any property of the estate of his decedent either directly or indirectly, and further contend that at the time of the conveyance of the land by Clement Powers to Joseph P. Powers and his wife, Alice M. Powers, the said Alice M. Powers was a cotenant of the other heirs of Mrs. Mary Clapper, deceased, and occupied a position of trust toward her cotenants, and that her acquisition of the land inured to the benefit of all of the heirs of the estate of the said Mrs. Mary Clapper, deceased.

These contentions make necessary a consideration of the evidence. We relate the material facts, which are not in substantial dispute except as to the manner of making the sale and the party by whom it was conducted, and as to the latter, we point out the conflicting testimony.

Mrs. Mary Clapper died intestate on May 18, 1939. She left surviving her as her sole and only legal heirs five children, namely: James F. Clapper, Kathryn Kaiser (Mrs. W. J. Kaiser), Mrs. J. M. Durst, John R. Clapper, and Mrs. Alice M. Powers. Mrs. J. M. Durst died intestate on July 16, 1950, and left surviving her as her sole and only heir at law her husband, John M. Durst. The said John M. Durst died on November 14, 1950, leaving a last will and testament wherein he devised his estate to Sophia Oettinger and Mollie Oettinger. John R. Clapper died on December 25, 1946, leaving surviving him as his sole and only heirs his adult sons, Harold and William Clapper. On October 9, 1939, Mrs. Alice M. Powers was appointed and qualified as the administratrix of the estate of the said Mrs. Mary Clapper, deceased. There was thereafter probated against the estate of the said deceased the claim of Mrs. Alice M. Powers for $670.06, which was a claim for reimbursement for expenses of last illness and funeral expenses advanced and paid by the said Mrs. Powers. An inventory filed by the administratrix on October 2, 1940 showed that no personal property was owned by the deceased at the time of her death. On the same date, the administratrix filed her petition for authority to sell the aforesaid land to pay the debts and expenses of administration. Service of process on this petition was duly obtained upon Mrs. J. M. Durst, Mrs. Kathryn Kaiser, John R. Clapper and James F. Clapper, and in addition thereto, the said Mrs. J. M. Durst filed in the administration proceedings her written consent that the land be sold as prayed for in the petition. On November 6, 1940, the said John R. Clapper and James F. Clapper filed in writing their objections to the sale, alleging that in lieu of selling the property the same should be mortgaged to obtain funds with which to pay the debts of the estate, and offering to advance the necessary funds. After a hearing on the aforesaid petition, a decree of the chancery court was entered on January 27, 1941 authorizing and directing the sale of said land for the purpose of paying the debts and expenses of administration, and directing a report of said sale for confirmation at the next regular term of the court, without the necessity of further process upon the heirs. On May 10, 1941, a report of said sale was filed by the administratrix, showing the same to have been made on April 7, 1941 in accordance with the directions of the decree authorizing the same, and showing that the land was bid in at the sale by H. H. Parker for the sum of $1,175 in cash. On May 20, 1941, the court entered a decree confirming the sale and ordering distribution of the proceeds thereof to the heirs. On August 1, 1941, the administratrix filed her petition presenting her final account, and praying for the approval thereof, which final account showed the proceeds derived from said sale. This petition was joined in and signed by Mrs. J. M. Durst and Mrs. Kathryn Kaiser, and process on the petition was duly obtained upon all of the heirs of the estate of Mrs. Mary Clapper, deceased. On September 15, 1941, objection to the approval of the final account was filed by James F. Clapper upon the sole ground that the deceased was a resident of the State of Wisconsin, it being manifestly the purpose of the objector to register objection to the administration of the estate in the State of Mississippi. On February 14, 1942, the court, upon a hearing of the petition for the approval of the final account of the administratrix, entered a decree approving said final account and directing distribution of the funds in the hands of the...