Gibson v. Currier

• Decision Date: 30 November 1903
• Citation: 35 So. 315,83 Miss. 234
• Court: Mississippi Supreme Court
• Parties: TANSEY GIBSON ET AL. v. CHARLES C. CURRIER ET AL

35 So. 315

83 Miss. 234

TANSEY GIBSON ET AL. v. CHARLES C. CURRIER ET AL

Supreme Court of Mississippi

November 30, 1903

FROM the chancery court of Copiah county. HON. HENRY C. CONN Chancellor.

Mrs Gibson and others, appellants, were complainants in the court below; Currier and others, appellees, were defendants there. From a decree denying the complainants a part of the relief sought they appealed to the supreme court and the defendants prosecuted a cross appeal from the decree in so far as it granted complainants any relief whatever. The facts are fully stated in the opinion of the court.

Affirmed on appeal and cross-appeal.

R. P Willing, J., for appellants and cross appellees.

The original decree under which the lands were sold was void as to the infants, and Mrs. Matthews acquired no titles to the lands in controversy under the sale made by Hargraves under said decree. While the decisions of the various courts are not entirely harmonious a number of courts have held that a joint judgment at law is an entirety, and that where the judgment has been rendered against several defendants jointly it is not susceptible of division, or so apportioned as to be purged of the errors or irregularities it may contain as to one of them while standing good against the rest. Accordingly, it is held in a number of the states, that if the judgment is void as against one of the defendants for want of jurisdiction over him, it will be so considered as to all of the defendants, and therefore a mere nuillty. Black on Judgments, see 211, and authorities cited in notes.

There are other authorities, however, which hold that although a judgment may be void as against one of the defendants for lack of jurisdiction, still it may be valid and binding on the others, or at most voidable, but not void in toto. Id p. 211, and authorities cited in notes.

The authorities, however, are not harmonious as to a joint judgment against several defendants which is void as to one of them when it is brought before a court of review on an appeal. In general they agree that it cannot be affirmed as to one defendant and reversed as to another, but may be reversed as an entirety. Id., § 211, p. 253. The case cited in the notes.

In the state of Missouri, it is held that a judgment void as to one defendant is void as to all, and is considered to apply to judgments only and not to decrees in equity. 6 Mo. App., 1; 28 Mo., p. 134.

In Rule v. Broach, 58 Miss. 553, this court held that a decree of the probate court for the sale of land of a decedent for division among the heirs which was void as to one of the parties was void as to all the defendants.

Judge Campbell, however, in delivering the opinion of the court took occasion to say that the case of Hamilton v. Lockhart, 41 Miss. 461, was the only case which ignored the manifest distinction between judgments at law which were joint and decrees which were not, but which the court was not in that case disposed to disturb. It was not to be inferred, however, from the unwillingness to overrule the case cited that it would be valid in other cases besides decrees for sale in probate proceedings.

In Moody v. McDuff, 58 Miss. 751, the court reversed the decree in that case on the ground that one of the infant defendants had not been served with process, holding that the reversal of the decree did not necessitate the setting aside the pro confesso as to the adult, but that would be left to the sound discretion of the chancellor in the further progress of the cause, as was held in Ingersoll v. Ingersoll, 42 Miss. 155.

Judge Chalmers delivered the opinion in that case, stated that he understood the rule in this case to be the reverse of that held in Hamilton v. Lockhart, and that each party in that forum stands upon his rights, and is affected only by errors that affect him.

Judge Cooper, in delivering the opinion upon the appeal of J. William Jones from the decree now under review states that the decree in that case being inseparable would have to be reversed as a whole, and it was so reversed.

Decrees of the chancery court are not necessarily joint. The court may render a joint decree as to all the defendants or a separate decree as to some of them. Was the decree under which the land in controversy was sold, a joint decree as to J. William Jones and Eugene H. Jones? We contend that it was, and that it was so held by Judge Cooper in reversing the case. Then, if our contention be correct as to its being a joint decree as to both of said defendant and that the decree was void as to the minor, J. William Jones, then it was void as to Eugene H. Jones, and Mrs. M. C. Matthews could acquire no title to the lands by the sale under said decree, and J. B. Jones conveyed only his interest in the land as tenant by the courtesy of C. C. Currier, the trustee. But suppose that the decree was not void as to Eugene H. Jones, but was only voidable, it was afterwards reversed by the supreme court as to Eugene H. Jones, and while the rule is that a reversal of a decree or judgment under which lands have been sold will not destroy the title of the purchaser who purchased in good faith before such reversal, yet such rule does not hold where the sale is made to the execution plaintiff or complainant in a chancery suit. Mrs. Matthews was the complainant in the suit under which the decree was rendered and under which the sale was made, and she bid off the land for something over $ 200.00, which was not paid by her nor credited on the decree, and the rule only holds good as to other parties who have purchased it in good faith and without notice of any glaring irregularities in the proceedings under which the sale was made. The doctrine of caveat emptor applies to a purchaser under a decree of a chancery court.

A sale under a void decree or under a decree in which the proceedings were irregular, if these irregularities are shown in the record, will not confer title on the purchaser or subsequent purchasers in case of a reversal of the decree. Am. & Eng. Ency., pp. 228, 229, and authorities cited.

The record showed that J. Willie Jones was a minor and that the court had no jurisdiction of his person, and that the decree was void as to him, and would be reversed on appeal. The attorney of Mrs. Ford at the time she purchased the lands, or at least before she paid any of the purchase money for the same, at her request, examined the title for her, and examined the proceeding under which the land was sold, and either saw or could have seen the fatal defect in the decree, and notice to him was notice to Mrs. Ford, and she was bound by what he discovered or ought to have discovered if he had pursued the inquiry as far as it should have been done.

The two year's statute of limitations under § 2760 of the code set up by the defendants as a defense will not avail. There is no possible rule for the application of that statute. Every element is wanting. Mrs. Matthews did not pay the purchase money at the time of the purchase or have it credited on her decree, and did not take possession of the land. Jeffries v. Dowdle, 61 Miss. 504.

There is no room for either an estoppel nor subrogation under the facts of this case. Mrs. Ford purchased a life estate under the impression that she was purchasing the fee simple. That impression arose in the face of the record showing to the contrary, which record she had looked into through her attorney, and she was bound not only by what she saw, but what he should have seen in the record.

The defendants, Francis Smith, Caldwell & Company, took their deed of trust after the reversal of the decree and with the opinion and mandate in the record. Besides, the original loan which was made to Mrs. Ford in 1886 was applied in payment of the notes which Mrs. Ford had executed to J. B. Jones for the lands, was made by the Scottish-American Mortgage Company, limited, and not by Francis Smith, Caldwell & Company. The title Mrs. Ford took did not fail. She simply got less than she thought she was getting. It is not a case where the purchaser got nothing. She got the life estate of J. B. Jones, which continued from the date of her purchase to the death of J. B. Jones, who died in 1899.

Robert B. Mayes and J. S. Sexton, for appellees and cross appellants.

The statute provides that the infant himself must not only be served with process but that the service for the infant shall likewise be "upon his father or mother or guardian if he have any in this state." The manifest and only purpose of this provision of the statute was to provide an extraordinary precaution in the matter of service of process upon infants, for the reason that because of their infancy they might not guard and protect their interests as their parents or guardians might be likely to do. Common sense would have indicated that the purpose of the statute in cases where the parents or guardians happened to be jointly interested with the infant and jointly named as defendants with him would have been fully met by service of the process intended for both upon each of them, as it would if there had been more than one copy of the process, and each copy had been served upon the parent or guardian for the purpose of the statute before indicated, was not to multiply the issuance of service of process but to see that the parent or guardian, as well as the infant, was duly served.

Responding to this common sense principle this court, as early as the case of McIlvoy v. Alsop, 45 Miss. decided that "if the mother be co-defendant and she and her infant child should be summoned in one process, her relationship appearing on the face of it a return thereon showing that a copy was delivered to each will be sufficient."

A moment's reflection will show that the...