Hayes v. First Joint Stock Land Bank

• Decision Date: 27 January 1936
• Docket Number: 32049
• Court: Mississippi Supreme Court
• Parties: HAYES et al. v. FIRST JOINT STOCK LAND BANK et al

165 So. 605

174 Miss. 880

HAYES et al. v. FIRST JOINT STOCK LAND BANK et al

No. 32049

Supreme Court of Mississippi

January 27, 1936

Division B

1 JUDGMENT.

Purchasers ante litem motam and for valuable consideration held not bound by decree rendered in suit to which they were not parties at time of rendition of decree.

2 JUDGMENT.

To apply res judicata rule to persons because of their privity with parties to suit, it must appear that estate or interest sought to be affected was acquired from or through such actual parties after litigation, and if estate or interest was acquired from an actual party prior to the litigation purchaser for value, unless also party, will not be bound by decree.

3. SUBROGATION.

Administrator who discharged mortgages given by decedent was subrogated to rights of deceased's heirs, and hence administrator's estate was entitled to credit for such mortgage payments, notwithstanding that mortgage debts were not probated.

HON. R. E. JACKSON, Chancellor.

APPEAL from the chancery court of Tallahatchie county HON. R. E. JACKSON, Chancellor.

Suit by Ura Lee Hayes and others against First Joint Stock Land Bank and others. From a decree dismissing the complaint, complainants appeal. Affirmed.

Affirmed.

Stone & Stone, of Coffeeville, for appellants.

As to the court's holding that the present owners of land are bona fide purchasers thereof for value without any notice of secret claim of petitioner, we think that is directly in contradiction of the positive and unbroken line of decisions in the state of Mississippi.

Under our statute the lands, as well as the personalty of the deceased, are liable to the payment of his debts. The only difference is that the latter is to be first exhausted. It is true the legal title to lands descends to the heirs, who are entitled to enjoy them until the contingency arises when they may be required to pay debts but the heir holds them subject to the charge of the ancestor's debts. The charge is fixed by law at the time of the ancestor's death, though the indebtedness may not be then ascertained. In the interim the heirs hold the legal title subject to this charge.

Evans v. Fisher, 40 Miss. 643; Lee v. Gardiner, 26 Miss. 541; Stigler v. Porter, 42 Miss. 449; Gift v. Love, 164 Miss. 442, 144 So. 562; Mitchner v. Robbins, 19 So. 103; Yandell v. Pugh, 53 Miss. 295; Ferguson v. Scott, 49 Miss. 500; Taylor v. Board of Supervisors of Chickasaw County, 12 So. 210; Westbrook v. Munger, 61 Miss. 329; Edwards v. Kelly, 83 Miss. 144, 35 So. 418; Self v. Drainage District, 158 Miss. 7, 128 So. 339; Peebles v. Acker, 70 Miss. 356, 12 So. 248; Bell v. Rudolph, 12 So. 153; Savings Bank & Loan Assn. v. Tart, 81 Miss. 276, 32 So. 115.

As long as there is a valid debt against the estate the heirs and distributees cannot acquire any title to such chattel as against the creditors and any conveyance thereof by them is ineffectual against such creditors.

Faler v. McRae, 56 Miss. 227; Hargrove v. Baskin, 50 Miss. 194.

As to collateral attack and the method of carrying out the enforcement of the decree, see: Neely v. Craig, 162 Miss. 712, 139 So. 635; Whitley v. Towle, 163 Miss. 424, 141 So. 571; Hester v. Hester, 103 Miss. 13, 60 So. 6; Temple v. Cain, 60 Miss. 478; Dolan v. Tate, 137 So. 515, 161 Miss. 615; Blum v. Planters Bank & Trust Co., 154 Miss. 800, 122 So. 784; Evans v. Fisher, 40 Miss. 643.

We sued the Johnson estate by its personal representatives and by its heirs at law and this is admitted. How on earth do they get it now that these people, appellees, have a right to fight and re-open this judgment when they can have no more rights than the heirs of Johnson had and the Johnson heirs have had their day in court, they have been condemned to suffer a judgment against the land of the estate of Albert Johnson, a judgment obtained after many weary years of fighting in the courts and after the exhaustive efforts of distinguished counsel had done their best in trying to repel the attack.

J. J. Breland, R. L. Cannon and L. Q. Strong, all of Sumner, Shands, Elmore, Hallam & Causey, of Cleveland, and Roberson, Cook & Luckett, and Brewer & Montgomery, all of Clarksdale, for appellee.

The former decree was not conclusive as to appellees.

Sections 1694 and 1695, Code of 1930.

Any judgment or decree rendered without notice is void.

Jack v. Thompson, 41 Miss. 49; Coleman v. Smith, 124 Miss. 604, 87 So. 7; Commercial Bank of Magee v. Evans, 145 Miss. 643, 112 So. 482; Canton v. Ross, 128 So. 560.

To order a sale of the appellees' land without giving them an opportunity to show, and to have the benefit of, all available defenses would be violative of the Fourteenth Amendment to the Constitution of the United States.

12 C. J. 1190, sec. 956; Donovan v. City of Vicksburg, 29 Miss. 247.

A party who acquires the rights in land of an heir at law is entitled to make the same defense in a suit seeking a sale of that land for the payment of the ancestor's debts as the law would allow the heir to make.

Turner v. Ellis, 24 Miss. 173; Paine v. Pendleton, 32 Miss. 320; Vaughan v. Greer, 38 Tex. 530; 18 C. J., Descent and Distribution, page 897, sec. 175 (d).

On a petition for the sale of their land to satisfy a debt of their grantors' ancestor, the appellees have the right to appear and contest the petition, and to set up any defense available had they been parties to the original litigation in which such decree was rendered.

Turner v. Ellis, 24 Miss. 173; Paine v. Pendleton, 32 Miss. 320; Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 651; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Moore v. Hillebrant, 41 Tex. 312, 65 Am. Dec. 118, note 3.

The records of former trials were competent evidence.

Cockrell v. Wynne, 12 S. & M. 117; Lehr v. Hall, 5 H. 54; Goddard v. Long, 4 S. & M. 782; Moore v. Carson, 1 H. 53; Gridley v. Denny, 2 H. 820; Englehard v. Sutton, 7 H. 99; Dogan v. Brown, 44 Miss. 235; McKnight v. Dozier, 44 Miss. 606.

Johnson was not indebted to Hayes estate in any sum.

Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515; 11 R. C. L., Executors and Administrations, secs. 170, 171, 172; 24 C. J., pages 144, 145, secs. 619, 620, page 334, sec. 955; Roberts v. Rogers, 29 Miss. 152, 61 Am. Dec. 542; Woods v. Ridley, 27 Miss. 119; Starn v. Hampton, 73 Miss. 555, 19 So. 300; Section 1675, Code of 1930; Davis v. Blumenberg, 107 Miss. 432, 65 So. 503; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Donald v. McWhorter, 44 Miss. 124; Ridgeway v. Jones, 125 Miss. 22, 87 So. 461; Edwards v. McGee, 27 Miss. 92; Morgan v. Morgan, 36 Miss. 348; Pratt v. Pratt, 155 Miss. 237, 124 So. 323; Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371.

The appellants are estopped from making any claim.

Handy v. Nooman, 51 Miss. 166; Wilie v. Brooks, 45 Miss. 542; Young v. Walker, 70 Miss. 813, 12 So. 546; Section 1701, Code of 1930 (Hem. 1917, Code, sec. 1750); Hudson v. Gray, 58 Miss. 882; Bowers v. Williams, 34 Miss. 324; Hayes v. National Surety Co., 169 Miss. 676, 153 So. 515; Hemingway's 1917 Code, sec. 1772 (Code 1930, sec. 1675).

Roberson, Cook & Luckett, of Clarksdale, for appellee, I. Frank.

The appellants failed to show, by any proof, that Albert J. Johnson owned the lands in Coahoma county at the time of his death.

The title of I. Frank is supported by a valid tax sale made in 1922, and is, therefore, superior to the rights of the appellants.

The appellee Frank, having become a bona fide purchaser of the lands in Coahoma county, is not chargeable with notice of the claim of appellants in any event.

It may be said that the failure of the clerk to perform the duty imposed upon him by statute should not deprive appellants from any rights they otherwise would have. This court will have to choose between appellees, innocent parties, and appellants, to say the least, most negligent parties.

23 R. C. L., Records, sections 49, 50 and 51, page 191; 63 A.L.R. 1057; Section 2160, Code of 1930.

The case of Frank, appellee, is quite different from that of the other appellees in this respect: he purchased lands in Coahoma county. No record of any character of the Hayes estate appeared therein.

On the proposition that the appellees are not precluded by the decree against the administrator d. b. n., we desire to call the court's attention to the following Mississippi authorities:

McCoy v. Nichols, 4 How. 31; Bullock v. Sneed, 13 S. & M. 293; Ferguson v. Scott, 49 Miss. 500; Champion v. Cayce, 54 Miss. 695.

Argued orally by W. I. Stone, for appellant, and by J. J. Breland, E. L. Brewer and Lake Roberson, for appellee.

OPINION

Griffith, J.

This is the third appearance of this case in this court. The report of the first appeal is found in Hayes v. Holman, 165 Miss. 494, 144 So. 690; and the second in Hayes v. National Surety Company, 169 Miss. 676, 153 So. 515. From the opinions in those two reports the details of the facts may be extracted, which, when taken with the additional facts developed on the third hearing and which we shall herein state, will reveal the setting of the two points which we shall decide at this time, and the only two points which are necessary now to determine.

When the pleadings were reformed and additional parties were brought in as directed by us upon the first appeal, the complainants did not bring in as parties those who had theretofore become the purchasers of the lands of Albert Johnson deceased, from his heirs at law, although it now appears that all the lands of Albert Johnson, inherited by his heirs, had been, for valuable considerations, conveyed away by them previously to the institution of the suit by complainants. But when the case had been heard the second time by the trial court and complainants had...