Fink v. Henderson

• Citation: 19 So. 892,74 Miss. 8
• Court: Mississippi Supreme Court
• Decision Date: 27 April 1896
• Parties: PETER FINK v. J. L. HENDERSON

19 So. 892

74 Miss. 8

PETER FINK v. J. L. HENDERSON

Supreme Court of Mississippi

April 27, 1896

March 1896

FROM the chancery court of Hancock county HON. W. T. HOUSTON Chancellor.

Peter Fink filed his bill in the chancery court of Hancock county seeking a confirmation of a tax title to the land described in his bill. Clara Marks and all persons having an interest in the lands were made parties defendant. No personal service was obtained on any of the defendants, but publication was made for them according to law. No answer was filed, and a decree pro confesso and a final decree were taken, according to the prayer of the bill, confirming the tax title. A little over a year after the confirmation of the tax title, J. L Henderson filed the petition in this case, seeking to reopen the decree, under §§ 519, 520, of the code of 1892. The petition alleged that at the time the bill was filed to confirm the tax title, the lands described therein belonged to the heirs of C. B. Beverly, setting out the chain of title, and averring that said Beverly died intestate, and the property descended to the heirs named in the petition; that they were nonresidents and knew nothing of the confirmation proceedings, and at that time had a good and complete defense to that suit; that before the petition was filed, the said Beverly heirs sold and conveyed the lands to petitioner. Defendants demurred to this petition, and the demurrer was sustained. Complainant amended, having, in the meantime taken an assignment of the right of action and the right of the Beverly heirs to reopen the decree, and set them up as an exhibit to the amended petition. A demurrer was interposed to this amended petition, on the ground, among others, that the petitioner was not the owner of the land at the time of the commencement of the suit, or at any other time. This demurrer was overruled, and defendant appealed.

Decree affirmed and remanded.

E. J. Bowers, for appellant.

Sections 519 and 520 of the code of 1892 prescribe the terms on which a decree rendered upon proof of publication may be reopened. By section 520 it is clear that the right to intervene in a suit passed as this was is confined to the defendants of record. The petitioner was not a party to the suit. On the face of his petition he had no interest in the subject-matter, either at the time of the rendition of the decree or when the land was sold for taxes. He was not interested, in the meaning of the law. The question is whether, under the terms of the statute, he who purchases after the rendition of decree may avail himself of the privilege reserved solely for the benefit of defendants of record. The law was designed for the protection of nonresidents sued in rem in the state from the operations of decrees rendered against them without their knowledge, and not to be made the means of promoting litigation and inciting champertous contracts. At the time of filing the original petition the appellee was the holder merely of defendants' right to the land--such right as they had. They had no right in fact. Their right had been stripped from them by the operation of the tax deed and decree. They had no title--no legal interest that could be conveyed. No deed emanating from them could confer any rights upon appellee. They had no right of action. They had only a right of defense, which was not assignable even under our broad statute. Nor did they seek to assign this right until after the original petition had been filed. The statute is to be strictly construed, and appellee is not entitled to prolong or reopen this litigation.

Henderson & Henderson and Ford & Ford, for appellee.

We submit that there is nothing in the general policy of the law, as announced by the courts of this state, on the question of the assignability of rights, or choses in action that calls for any such strict or rigid construction of § 520 of the code, as contended for by complainants. The deed from the Beverlys to Henderson vested in him the entire estate of the Beverlys in the land, and inseparably connected with the ownership is the right to sue for possession, and incidental to that right is the right to appear and procure the annullment of this illegal decree. This was a right of defense, which we submit is synonymous with a right or cause of action, and that right or cause of action, unless it be for a tort, is assignable.

Section 520 is not in the category of laws calling for an interpretation. Its terms are plain. It contravenes no rule or principle of common law, and should be construed to meet the manifest intention of the legislature--that is, to permit no decree resting upon constructive notice to debar a timely application by the owner of the res for a full and fair investigation into the facts of complainant's claim. There never was but one principle of the common law that forbade the assignment of rights of this character, namely, champerty, and that has long since been abolished in this state. Sec. 2423, code of 1892; Cassedy v. Jackson, 45 Miss. 397.

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