Criscoe v. Adams
| Decision Date | 28 June 1920 |
| Docket Number | 21162 |
| Court | Mississippi Supreme Court |
| Parties | CRISCOE v. ADAMS |
March 1920
1. ABATEMENT AND REVIVAL. Administrator held authorized in term time to revive suit to cancel deed without notice of motion.
Where a complainant filed a suit in the chancery court to cancel a deed and after service of process on the defendant died, the administrator was authorized, under section 724, Code 1906 (section 507, Hemingway's Code), to revive the suit in his name for the benefit of the heirs without serving notice of his motion to revive on the defendant where said revivor was made in term time of said court.
2. ABATEMENT AND REVIVAL. Executors and administrators. Judgment. Administrator may revive suit to set aside deed may in certain cases sell land to pay debts, decree will not be reviewed on collateral attack after two years if court had jurisdiction.
Under the laws of this state, the administrator has the right in certain cases to sell land to pay debts, and he may revive and prosecute to judgment a suit to set aside a deed to land for condition broken in certain cases. And the court will not on collateral attack review the rightfulness of the decree sought to be collaterally attacked after two years, nor will it look to the evidence to see whether the decree was proper when the court had jurisdiction of the subject-matter and the parties, on collateral attack.
3. JUDGMENT. When judgment will not be set aside for irregularities or errors in conclusions of law, stated.
Where a court has jurisdiction of the subject-matter and of the parties and renders judgment therein and no appeal is taken and no bill of review within the time allowed by law therefor, the court will not set aside such judgment for mere irregularities or for error in conclusions of law.
HON. R W. CUTRER, Chancellor.
APPEAL from chancery court of Walthall county, HON. R. W. CUTRER, Chancellor.
Suit in partition by J. L. Criscoe against L. M. Adams. Decree for defendant, and plaintiff appeals. Affirmed.
Judgment affirmed.
Geo. Butler and Ford & Lotterhos, for appellant.
Appellant is not concluded by the decree in. J. F. Holmes, Administrator, v. George Connerly, et al., cause No. 1620. There are several reasons why appellant is not concluded by the decree in the above mentioned cause. We will discuss these points in the following sub-heads:
A
Even if Frances Manning had not executed the deed to Eugenia Green and Seaph Green, dated October 16, 1908, prior to the time she filed the suit to cancel her deed to George Connerly and Eugenia Green, she would not have had any standing in court to cancel the last-mentioned deed. She does not seek to cancel this deed for any fraud or misrepresentation in its procurement, but the whole attack is predicated upon the failure of George Connerly to carry out his agreement to care for Frances Manning for the remainder of her life.
In Dixon v. Milling, 102 Miss. 449, it is held: "A deed conveying land in consideration of an agreement to support the grantor, cannot be cancelled for breach of the undertaking, the remedy being by action on the undertaking." Lee v. McMorris, 107 Miss. 889; Lowrey v. Lowrey, 111 Miss. 153; Dixon v. Milling, 102 Miss. 449; Gadberry v. Shepherd, 27 Miss. 203; Memphis etc., Railroad Co. v. Neighbors, 51 Miss. 412; Thornton v. Natchez, 88 Miss. 1; Soria v. Harrison County, 96 Miss. 109; Thornton v. Natchez, 88 Miss. 1, 41 So. 498; See, also, Thornton v. Natchez, 129 F. 84; Thornton v. Natchez, 197 U.S. 620; Thornton v. Natchez, 212 U.S. 559; Burke v. Shaw, 59 Miss. 443; Vaughan v. Hudson, 59 Miss. 421; Gabbert v. Wallace, 66 Miss. 618; Cole v. Coon, 70 Miss. 634; Gibson's Suits in Chancery, section 555. Appellant is not concluded by the default judgment in cause No. 1620, because it is affirmatively shown that after Connerly had been served with process and before any further action was taken in the matter, that Frances Manning, the complainant, died. Daniel's Chancery Practice (5 Ed.); Farmers Loan & Trust Company v. Seymour, 9 Page, 528; Tarleton v. Cox, 45 Miss. 430; 45 Miss. 556; 47 Miss. 544; 48 Miss. 650.
The decree in cause No. 1620 is not binding on appellant because it was not revived in the name of the heirs of Frances Manning. According to all of the authorities, if Frances Manning had any right to attack the deed to Connerly in question, for breach of condition, upon her death, that right descended to her heirs at law, and not to her administrator. Monographic notes to White v. Bailey, 23 L. R. A. (N. S.) 232; Daniel's Chancery Practice, 1508, 1538; 18 Ency. Pleading & Practice, 1101; Fletcher's Equity, Pleadings & Practice, section 859; Root v. McFarrin, 37 Miss. 17; Hargroves v. Baskin, 50 Miss. 194; Bullock v. Sneed, 13 S. & M. 293; Moore v. Ware, 51 Miss. 206.
Appellant is not concluded by the decree in cause No. 2037, undertaking to confirm the title in appellee. Connerly was not made a defendant to this proceeding and it was not alleged that Adams was the owner in possession, nor that there was no adverse possession of the land, while in truth and in fact, Adams was not in possession and Connerly was in possession, claiming the same openly and adversely.
It is elemental that decrees are not conclusive against those not made parties to the suit. In the case of Brooks-Scallon Co. v. Slonger, 115 Miss. 737, it is said: "It is the duty of a person filing a bill under this statute to see whether or not there is an adverse possession, in case the suit to confirm title does not lie, but the party will have to proceed to have the claim of such person cancelled, etc."
Section 3111 of the Code of 1906, limits the time for filing bills of review to within two years next after the date of the final decree, and of course, the last proceeding cannot be considered as a bill of review. It must be held to be what appellee manifestly intended it should be a bill to set aside the former decree because it was void.
Moreover, if it was a bill of review, it would have-been necessary to have made Connerly a party defendant to that bill, and to have him duly summoned into court. 3 Ency. Pleading & Practice, 593. Moreover, no order of the court was asked or obtained for leave to plead this bill. Manifestly it is not a bill of review.
There remains another reason why the decree of the chancellor cannot be upheld. George Connerly and Eugenia Green were tenants in common of this land on October 16, 1908, the date on which Eugenia Green undertook to acquire whatever title or claim of title that Frances Manning had to the property by reason of the alleged breach of the alleged condition in the deed. So that when Eugenia Green took the deed of Frances Manning on October 16, 1908, she acquired it for the common benefit of herself and her cotenant, George Connerly, and the law will not permit her to set up the title thus acquired in derogation of her cotenant's title, but the law will assume no matter what motive prompted her in the act, that she acquired this title for the mutual benefit of herself and her cotenant.
Cotenants stand in such relation of mutual trust and confidence in respect to the common property, and to the common title and the common source of the title, that courts of equity will not permit one cotenant to acquire an adverse claim and affirm it for his exclusive benefit, by undermining the common title to the injury and prejudice of the interest of his cotenant. In such case, the purchasing tenant is regarded as holding the claim so purchased in trust for the benefit of his cotenant.
"This rule is said to be inflexible without regard to the consideration paid or the honesty of the intent for the reason that public policy requires it not only as a shield to the parties represented, but as a guard against competition on the part of the representatives." 7 R. C. L. 858; Robinson v. Louis, 68 Miss. 69; Hignight v. Hignight, 65 Miss. 477; Harrison v. Harrison, 56 Miss. 174: Wyaat v. Wyaat, 81 Miss. ; Beaman v. Beaman, 90 Miss. 762; Stewart v. McTheney, 66 Miss. 21; Cohea v. Hemingway, 71, Miss. 22; Baker v. Richardson, 69 Miss. 394. The cases might be multiplied indefinitely, but the above are sufficient.
Conclusion. If this case should be affirmed, a manifest injustice and hardship will be worked upon appellant and his immediate vendor. Frances Manning conveyed this land to George Connerly and Eugenia Green not for any valuable consideration moving from her to Eugenia Green, but a good and valuable consideration moving to her from George Connerly. The deed was in consideration of services rendered and for the further consideration of Connerly supporting her during her lifetime, and the proof undisputably shows that Connerly immediately moved upon the premises and did support and take care of Frances Manning as long as she lived. This is proved, not by the testimony of the negro, whose testimony might have been more or less influenced by his interest in the outcome of the litigation, but by the testimony of Mr. McGuffy, a member of the board of supervisors, who knew the parties to the transaction, and testified to the declaration made by Frances Manning herself before she died.
It is respectfully submitted that this case should be reversed and remanded with directions to the court below to order an account between appellant and appellee for the rents, timber, etc.
E. J. Simmons, for appellee.
The fallacy of appellant's contention is evidenced when we reflect that he is really, after the lapse of many years and after his right to file a bill of review or to appeal has expired, seeking to litigate nunc pro tunc what he conceives to have been in issue in the two chancery suits mentioned.
He erroneously supposes that Connerly may now interpose...
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