Dolan v. Tate

• Decision Date: 16 November 1931
• Docket Number: 29515
• Citation: 137 So. 515,161 Miss. 615
• Court: Mississippi Supreme Court
• Parties: DOLAN et al. v. TATE et al

137 So. 515

161 Miss. 615

DOLAN et al. v. TATE et al

No. 29515

Supreme Court of Mississippi

November 16, 1931

Division A

1. EXECUTORS AND ADMINISTRATORS.

Sale under execution of land of decedent pursuant to decree recovered against administrator held void for noncompliance with statutes regulating proceedings for sale of decedent's land for payment of debts (Code 1930. sections 1689-1695).

2. EXECUTORS AND ADMINISTRATORS.

Provision for revival of pending action against deceased defendant's representative does not permit collection by execution of judgment rendered against representative (Code 1930, sections 1689-1695, 1714).

3 EQUITY.

General demurrer goes to whole bill and not to claim asserted by single complainant therein.

4. LIMITATION OF ACTIONS.

Bar of statute of limitations is not raised by demurrer, unless specifically assigned as ground of demurrer (Code 1930 section 376).

5. DESCENT AND DISTRIBUTION.

Heirs of decedent suing to remove, as cloud on title, claim asserted through purchase at execution sale under judgment against ancestor's representative, need not offer to pay judgment or amount for which land was sold (Code 1930 sections 1689-1695).

6. DESCENT AND DISTRIBUTION.

Heirs of deceased are under no personal obligation for payment of his debts.

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL, Chancellor.

Suit by Mrs. M. A. Dolan and others against E. F. Tate and others. From a decree dismissing the bill on demurrer, complainants appeal. Reversed and remanded, with leave to defendant to answer.

Reversed and remanded.

J. F. Galloway, of Gulfport, for appellants.

The creditor by judgment against the personal representative acquires a lien on the assets in his hands, which may be satisfied by final process. As against the real estate the judgment is no more efficient, conferring no greater privileges, than did the promissory note or bond upon which it may have been founded. Such judgment creditor has no right to subject the lands better than he had before he sued at law. Nor is he aided by the fact that the final process against the personal assets has been fruitless.

Hargrove v. Baskin, 50 Miss. 197.

The theory of our statute is that the real estate of a decedent shall be chargeable with the debts in a certain manner. The act which imposes the burden, at the same time defines the mode by which it shall be realized.

Hargrove v. Baskin, 50 Miss. 197.

The chancery court has no power whatever to reach the real estate of the decedent or to charge it except in the manner provided by the statute.

Payne v. Pennelton, 32 Miss. 323; Buckingham v. Walker, 51 Miss. 495; Partee v. Kortrecht, 54 Miss. 69; Hargrove v. Baskin, 50 Miss. 194.

If the action involves both the real and personal property it should be revived against both the personal representatives and the heirs.

1 R. C. L., Art. 18; Owens case, 1 Bland (Md.) 370, 17 Am. Dec. 311.

The heirs had not been cited, as required by the statutes, to appear and contest the sale of their interest in the real estate, nor had there ever been a petition filed or other proceedings in the court to reach the same. Nor was there ever a hearing and decree under any proceedings to render the real estate liable and the execution invalid.

Sections 1694 and 1695 of the Code of 1930.

Creditors may also file petitions for the sale of real estate.

Sec. 1693 of the Code of 1930.

Real estate of a decedent may be sold upon proper petition to pay debts where there is an insufficiency of personalty and fixes the method of procedure.

Sections 1691 of the Code of 1930.

There is no privity between the real and personal representatives of a deceased person, since the title to realty passes directly from the decedent to his heirs or devisees. Hence a judgment against an administrator or executor is never conclusive against the heirs or devisees, and a judgment for or against an heir or devisee has no effect upon an administrator or executor. A decree against an executor, is not binding on the heir because he is not a party to the suit, cannot offer testimony, adduce evidence in opposition to the claim, nor appeal from the judgment.

1 Freeman on Judgments, art. 493; Andrews v. Andrews, 16 So. 345; McCoy v. Nichols, 4 Howard, 31.

R. E. Steen, of Picayune, and Simon Rosenthal, of Jackson, for appellees.

To maintain this suit complainants must offer to do equity and thus to pay the said judgment, or to provide for the payment thereof out of the personal effects in the hands of the administrator, or to refund the purchase price, and to refund the defendants for the taxes which they have paid for many years past.

Strickland v. Webb (Miss.), 120 So. 168.

The suit having been filed prior to the death of Dolan, the claim was not one which had to be probated, but it was necessary that same be revived and proceed to trial in the manner above set out.

Section 1714, Code of 1930; Dillars & Co. v. Woollard, 124 Miss. 677, 87 So. 148.

Where scire facias or summons issue against the administrator and the suit is revived in the name of the administrator, it does not become a new suit, but is merely a proceeding in the original suit and not affected by any administration proceeding.

Breckenridge's Administrator v. Mellon's Administrator, 1 How. (Miss.) 273.

When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.

Section 1714 of the Code of 1930.

In equity, abatement does not, as at law, terminate the suit, but merely suspends all the proceedings therein so that on removal of the cause of abatement the suit may be proceeded with.

1 C. J. 27; Clark v. Mathewson, 12 Pet. (U. S.) 164, 172.

A person filing a bill for removal of cloud from title must show a perfect title in himself and he must show the invalidity of his adversary's title. The complainants' title must be perfect, or, in other words, cannot be based upon defects in defendants' title.

Goff v. Avent, 122 Miss. 86; Wilkerson v. Hiller, 71 Miss. 678, 14 So. 442; Hart v. Blumfield, 66 Miss. 100, 5 So. 620.

OPINION

Smith, C. J.

This is a suit filed by the appellants to cancel the claim of the appellees to certain land as a cloud on their title thereto. A demurrer to the bill was sustained, and the bill was dismissed. It appears from the bill of complaint that the appellants, the complainants in the court below, are the widow and children of P. A. Dolan, who died intestate seized and possessed of the land. Dolan was a surety on the bond of William Reeves, Jr., sheriff and tax collector of Harrison county. Reeves defaulted, and the shortage in his account with the state and county was paid by several of his bondsmen, who thereupon brought suit against the other bondsmen, including Dolan, for contribution. While the case was pending, Dolan died, and the case was revived in the name of his administrator. Thereafter a final decree was rendered, which, on appeal to this court, was reversed, and a decree was rendered here increasing the amount of the complainants' recovery (Russell v. Clark, 114 Miss. 898, 75 So. 691), and execution on this decree was sued out in the court below, and the land here in question was sold thereunder. The execution was against J. L. Taylor, administrator of the estate of P. A. Dolan, deceased, and the sheriff's deed to the purchaser at the execution sale recites that "I have this day according to law sold all of the interest and title. J. L. Taylor, Administrator of the Estate of P. A. Dolan, deceased," and conveys the land to the bidder, Perkins, in consideration of the sum bid therefor by him.

Perkins conveyed the land to Tate, and Tate conveyed it to Pickford on deferred payments, secured by a deed of trust on the land. Doian's title traces through a tax sale, and Tate, after he...