Craft v. Burrow

• Decision Date: 08 October 1956
• Docket Number: No. 40223,40223
• Citation: 228 Miss. 664,89 So.2d 722
• Parties: Janie Mae CRAFT v. J. C. BURROW and C. M. Thomas.
• Court: Mississippi Supreme Court

Page 722

89 So.2d 722

228 Miss. 664

Janie Mae CRAFT v. J. C. BURROW and C. M. Thomas.

No. 40223.

Supreme Court of Mississippi.

Oct. 8, 1956.

Arrington & Arrington, Hazlehurst, for appellant.

Sebe Dale, Jr., Columbia, for appellees.

ETHRIDGE, Justice.

This suit originated in the Chancery Court of Marion County, in the nature of a bill of review to set aside a partition sale of land. The questions are (1) whether the consent decree approved in good faith by appellant's attorney for her is binding on her, although entered without her knowledge, and (2) whether appellant Janie Mae Craft, who was complainant below, is thereby estopped from attacking the sale because of defects in the order of sale. The chancery court sustained the demurrer of appellees J. C. Burrow and C. M. Thomas, who were defendants in the trial court. We affirm that action.

This consolidated suit originated as two separate actions, but on motion of appellant both were consolidated. The bill made as an exhibit all of the proceedings in chancery cause No. 9819, which was the partition proceeding resulting in the sale to defendants. The bill charged that the decree ordering the sale and the decree confirming it were void. One allegation was that the property was appellant's homestead on the death of her husband, and the chancery court in the partition proceedings erred in finding that she had no homestead rights therein; but appellant does not contend that the trial court was incorrect in refusing to go behind the finding in the partition decree that appellant was living elsewhere and the property was not her homestead. So we do not consider further that averment in the present bill. Principally, the bill of complaint charges that the vacation decree of September 10, 1954, and the decree of December 17, 1954, confirming the commissioner's sale, are void, because the decree ordering the sale was made in vacation on a date not precedently set for such decision and without notice to appellant.

The partition proceedings, Cause No. 9819, made a part of the instant bill, reflect that on October 19, 1953, Burrow and Thomas filed in the Chancery Court of Marion County a bill to partition by sale the 40 acres in question. It charged that appellant's husband, Bennett Craft, died intestate, the owner of the 40 acres, leaving as his sole survivors his widow, appellant Janie Mae Craft, and his daughter, Bennie Craft Brasley; that each of them became owners of one-half undivided interest in the land, and on September 7, 1953, the daughter, Bennie, conveyed her one-half interest to Burrow and Thomas, the present appellees. The bill charged that the land was unimproved and only partly cultivated, consisting of hills and hollows, and incapable of partition in kind, and prayed for a partition by sale. Personal process was served on defendant Janie Mae Craft, who by her attorney filed a motion for additional time to plead. It was sustained. Defendant by her counsel then filed an answer and a demurrer. On February 18, 1954, the chancellor made an order by agreement of the parties taking the cause under advisement for a hearing in vacation and entry of final decree, 'at a time and place to be agreed upon between court and counsel'. Apparently the cause was tried in vacation in July 1954. On July 26, 1954, the chancery court signed a partition decree, holding that the land was not a part of Janie's homestead, ordering a partition in kind, appointing three commissioners to do this and to report their action to the court in vacation on September 3, 1954, for confirmation or such other and further proceedings as the court might find necessary and proper.

On August 4, 1954, the commissioners signed their oaths, and on August 30 filed their report. This report stated in detail their examination of the land and their conclusion that it was not susceptible to partition in kind, and recommended that the land be sold. This report was not filed five days before the return date of September 3 as required by Code of 1942, Sec. 1384, and the court made no order on September 3 setting the report for further consideration at a later day, as should have been done under Code Sec. 1232. Nevertheless, on September 10, 1954, in vacation, the court made a decree accepting the report of the commissioners and ordering that the land be sold. It directed that the commissioner sell the land at public sale on October 11, and report his action for confirmation at the November 1954 Term.

The record in the partition proceeding, Cause No. 9819, next reflects a proper publication of notice of public sale for October 11, and on that date the property was sold to Burrow and Thomas for $750. The sale was not confirmed at the November term, but on November 11 the court entered the following decree: 'Upon the agreement of parties and their counsel, and with the consent of the court, this cause is hereby taken under advisement for the presentation and consideration of Commissioners Report of Sale in Vacation, and for such other and further proceedings as may thereafter be necessary at such time and place as may be agreed upon by counsel for both sides and approved by the court.'

The next step in the partition proceeding occurred in vacation on December 17, 1954, when the chancellor signed a decree confirming the commissioner's sale to Burrow and Thomas, and directing delivery of a commissioner's deed to them and distribution of proceeds of the sale after payment of costs. That decree further adjudicated: 'The court specifically finding that all parties to this proceeding were represented in court by their respective attorneys of record at the confirmation hearing and expressly consented to the confirmation of the said sale as made and reported, and the court being of such opinion and so finding.' The commissioner then executed a deed on that same date to Burrow and Thomas, conveying to them the 40 acres.

As previously stated, the foregoing proceedings in the partition suit, Cause No. 9819, were made an exhibit to the present bill in the nature of a bill of review. The defendants-appellees, Burrow and Thomas, filed a general demurrer. The chancery court sustained it and dismissed the bill with prejudice. The trial court held that it would not look behind the decree of July 26, 1954, on the question of the homestead rights of complainant. It found that there were some irregularities with reference to the date for hearing the report of sale, but that the decree of November 11 was made in term time by agreement of the parties and their attorneys, both of them were present in court, and under this agreed decree the court later properly considered in vacation the commissioner's report of sale at the time agreed upon by counsel for both sides and approved by the court; and that the parties by their attorneys expressly consented to the confirmation of the sale by the decree of December 17, 1954. Hence the chancery court said that all parties had notice, agreed to and ratified the sale in the confirmation decree, and by necessary inference complainant was estopped to now contest the decree confirming the sale.

This bill in the nature of a bill of review does not allege that the consent decree of Decempber 17, 1954, was obtained by fraud or mutual mistake. It charges that the decree of September 10 ordering the sale and the confirmation decree of December 17, were obtained without appellant's personal knowledge or consent, and that she had no knowledge of the sale 'until...