Hicks v. Blakeman

• Citation: 21 So. 7,74 Miss. 459
• Court: Mississippi Supreme Court
• Decision Date: 14 December 1896
• Parties: FRANCES HICKS v. MOLLIE BLAKEMAN ET AL

21 So. 7

74 Miss. 459

FRANCES HICKS v. MOLLIE BLAKEMAN ET AL

Supreme Court of Mississippi

December 14, 1896

October 1896

FROM the chancery court of Yazoo county HON. H. C. CONN Chancellor.

On October 2, 1877, complainant was the owner of the land in controversy by descent from her grandfather, the deraignment of title set up in the bill being agreed to be correct. On that day her guardian, W. S. Epperson, petitioned the chancery court for leave to sell the land, the grounds of the petition being that the land was unproductive, and that her remaining estate was insufficient for the payment of her debts and for her support.

These allegations of the petition were attacked in this case as untrue. Complainant's mother and her uncles, James and Henry Vaughan, were made parties to the petition for sale and citation was issued for them on the same day of the filing of the petition, and returned executed on the same day. The citation required the appearance of the parties at the October term, 1877. At that time no action was taken on the petition, which was remanded to the rules, for some reason unexplained by the record. At the April term, 1878, a guardian ad litem was appointed for complainant, who made formal answer for her. At the same term decrees pro confesso were taken against the next of kin, and, finally, on March 25, 1879, a decree for sale was rendered, without additional process for next of kin. By the decree the land was ordered to be sold for one-half cash, balance on credit, and, on April 26, 1879, the guardian sold the land, J. W. Ricketts becoming the purchaser of a lot in the town of Vaughan's Station for $ 150, and N. Birmingham purchasing the remainder for $ 1, 253.75, and on the same date the guardian executed deeds to the purchasers, the deeds reciting that the decree required the sale to be for one-half cash, and the balance payable on November 1, next following; that the grantees were the highest bidders at the sums mentioned, and that the lands were struck off to them in consideration of said respective sums "paid and secured to be paid." The sale was never confirmed and never reported by the guardian, who wasted or misappropriated the half of the purchase money received by him. The guardian never filed any accounts with his ward, and on April 10, 1882, he was removed by the court. In 1877, when the land was sold, the complainant was only three years old. Ricketts sold the land bought by him at the guardian's sale to his wife, she conveyed it to Sharp Tucker & Co., and it is now claimed by and is in the possession of one J. S. Tucker, one of the defendants, who bought from the surviving partner of Richardson & May, who acquired title in some way undisclosed by the record.

Birmingham the other purchaser at the guardian's sale, having died in 1882, his estate was declared insolvent, and his real estate ordered sold. At the sale by the executor, on March 10, 1884, J. L. Blakeman, Birmingham's son-in-law, and husband of defendant, Mollie Blakeman, bought twenty acres of the land in controversy, which Blakeman afterwards conveyed to Mrs. Ida Tucker. Twenty-four acres of the land were also bought by A. J. Collins at the executor's sale, and these he afterwards conveyed to J. L. Blakeman, and he to defendants. The remaining portions of the lands were inherited by defendants, Mollie Blakeman, Ada Croom, and Norma and Wanda Tucker, from Birmingham--John Birmingham, another heir, having conveyed his interest to them on July 2, 1884. On March 26, 1890, several heirs of N. Birmingham partitioned the land among themselves, and since then have held the same in severalty, as shown by complainant's bill. J. S. Tucker was in possession of and claimed the purchase by Ricketts at the guardian's sale under mesne conveyance from hims and the remaining portions of the land sold by the guardian were in possession of and claimed by the other defendants sixty acres by inheritance from Birmingham, and forty-four acres by purchase from the purchasers at the sale by the executor of Birmingham's estate. The sale by the executor occurred nearly two years after the removal of Epperson as complainant's guardian.

On May 24, 1894, complainant filed her bill in the chancery court of Yazoo county, setting up the foregoing facts, alleging that the sale by the guardian was void; that she was the true owner of the land in controversy, and praying that the defendant's title be canceled, and that she be adjudged the real owner, for possession, for rents and profits, and for general relief. The defendants answered, setting up that Ricketts and Birmingham purchased in good faith, and paid the purchasemoney at the sale by the guardian, and interposing the two years statute of limitations relative to lands sold by order of the chancery court. There was no evidence that the purchase money was paid apart from the recital in the guardian's deed of a payment of half the purchase money, which deeds were made before confirmation.

The answer further alleged that J. S. Tucker, as to the lot held by him and defendants--as to that portion bought from A. J. Collins--were purchasers in good faith and without notice. No evidence was offered in support of this defense, the deeds which showed that the consideration for the several conveyances had been paid, showing, also, that those conveyances were of the same imperfect title conveyed by the guardian.

Defendants further averred that though there had been no confirmation of the guardian's sale by the court, complainants had confirmed it in pais. This allegation rests partly upon an unsworn petition, filed by her mother as next friend during complainant's minority, for the removal of Epperson as guardian, in which it was alleged that Epperson had collected the purchase money, and failed to account for it, and that he was largely indebted to the complainant beyond the amount of the purchase money; and partly upon the acts of defendants, it not being shown that complainant had knowledge thereof, or had ever received any part of the purchase money, in remaining in possession and improving the property.

Defendants also set up that complainant was indebted to Epperson, who was a lawyer, for legal services and taxes paid, and sought to be subrogated to his right therefor against complainant. The evidence offered in support of this averment was a charge in his fee book for $ 150 for services, it not being made to appear whether, even allowing this credit, Epperson would not still be indebted to complainant. As to the taxes said to have been paid by Epperson, the petition for removal shows that he had failed to pay them, and allowed complainant's land to be sold therefor. No evidence appears in the record of any taxes paid by Epperson.

Defendants also claimed the value of improvements made by them on the land and taxes paid by them thereon. The answer was made a cross bill, which was duly answered by complainant, denying its material allegations, and the cause went on regularly to hearing. Exceptions to defendant's answer were overruled, as was also a demurrer to the cross bill, but all the questions raised thereby arose also in the further progress of the cause.

On the hearing the chancellor decreed that the guardian's sale was void and conveyed no title, and that complainant was entitled to recover the land and rents and profits therefor, but that defendants were entitled to recover the value of improvements, and a reference was made to the clerk, as commissioner, to take and state an account of both, with leave to both parties to adduce further testimony before the commissioner.

The grounds of the attack on the title conveyed by the guardian were (1) want of confirmation; (2) want of jurisdiction, be cause of the failure to cause the next of kin to appear before the court when the petition of sale was finally acted upon, seventeen months after the term at which they had originally been cited to appear; (3) because the reasons for the sale, as alleged in the petition therefor, were untrue in fact. The voluminous record consisted largely of testimony as to the value of the rent and profits and improvements. On the testimony, the commissioner reported the value of the former at $ 1, 227. His report on improvements consisted of an estimate based on their cost, or the amount necessary to replace them, the estimate being $ 1, 600.50, plus taxes and interest thereon, $ 282.90, total, $ 1, 883.40; and of an estimate as to how much the value of the land had been increased by reason of the improvements, the amount of that estimate being $ 1, 000. On complainant's exception to the report, the chancellor held that the amount recoverable for improvements was not the enhanced vendible value, but the amount necessary to replace them. The complainant appealed, and assigned as error (1) the action of the court in allowing any recovery for improvements, and (2) in allowing more than the value added to the estate by the improvements.

Reversed and remanded.

Barnett & Thompson, for the appellant.

In Learned v. Corley, 43 Miss. 687, it was held that a party is bound to take notice of all the defects appearing in his chain of title, and, as against rights springing out of such defects, cannot claim to be a bona fide purchaser without notice. Held, that the purchaser was not entitled to his improvements. The effect of this decree was to deny the sufficiency of actual good faith and honest ignorance of defects to support a claim for improvements where the title papers under which the purchaser claimed themselves disclosed the invalidity of his title. It declared that the good faith required by statute, in claiming improvements, was identical with that to establish a bona fides in acquiring title, and that neither could...