Jordan v. Bobbitt

• Citation: 91 Miss. 1,45 So. 311
• Decision Date: 16 December 1907
• Docket Number: 12391
• Court: United States State Supreme Court of Mississippi
• Parties: J. L. JORDAN v. B. B. BOBBITT ET AL

45 So. 311

91 Miss. 1

J. L. JORDAN v. B. B. BOBBITT ET AL

No. 12391

Supreme Court of Mississippi

December 16, 1907

FROM the circuit court of Leake county, HON. JAMES R. BYRD, Judge.

This was an action of ejectment brought by the appellees, Bobbitt and others, and against the appellant, Jordan, to recover the land in controversy. The facts of the case are fully set out in the several opinions delivered by the members of the court.

Reversed and remanded.

McMillon & Howard, for appellant.

This case is one in which there is a great mass of record evidence, and the court should have continued the case for the term in order to have given time to have introduced the testimony regularly and to have heard and understood the same, instead of rushing it through on Saturday night, the last day of the term.

Dower was never assigned to the widow of A. I. Bobbitt, deceased. Code 1857, p. 469, art. 173, requires the petition for dower to be filed in the county of the residence of the deceased last before his death, and that it particularly specify the lands out of which dower is to be assigned. The petition in the case at bar fails to show that it is filed in the county of the residence of the deceased, while it is held in Caillaret v. Bernard, 7 Smedes & M., 316, that this statute must be strictly complied with to give the court jurisdiction to act.

The writ of dower: Under Code 1857, p. 469, art. 173, the writ must issue to the sheriff directing him to summon three discreet freeholders as commissioners, not connected with the party by consanguinity or affinity and entirely disinterested, who shall allot and set off by metes and bounds to the said widow her dower in the lands of her deceased husband. The return on the writ in the case at bar fails to show that the writ was executed as required by law both on the part of the sheriff and the commissioners. The sheriff's return fails to show that the commissioners summoned were discreet freeholders, and that they were not related to the party and entirely disinterested. The return of the commissioners fails to show that they set off the dower of the widow by metes and bounds, as was required by law. Gill v. Jones, 57 Miss. 367. The writ of dower should specify the land out of which the dower should be allotted; otherwise the commissioners would be at sea. They would not know what lands to take into consideration, as is shown by the report in this case; the report showing that they set apart lands that were not in the petition.

Unassigned dower is a mere right or chose in action, and no estate ever vests in the widow to any particular lands until the law has been fully complied with in setting off her dower, and she has been put in possession by the sheriff after dower has been legally set off by the commissioners. When the land has been set off according to law, it becomes the duty of the sheriff, under and by virtue of the writ of dower, to put the widow in possession of the lands set out, "which possession shall vest in her such estate as she may be entitled to under this act," says Code 1857, p. 470 art. 173. Until she is thus put into possession, no title ever vests in her, but she stands as before, only holding a right of dower, which is held, in Ligon v. Spencer, 58 Miss. 37, a mere right or chose in action. When the sheriff and commissioners have fully complied with the law they shall make their report to the court, which shall be recorded. Code 1857, p. 470, art. 173.

Should the court hold that W. B. Mann and those holding under him could not hold adversely against the heirs of A. I. Bobbitt under the deed executed to him by Mary E. Middleton and Henry A. Middleton dated December 6, 1867, the appellee having shown no title in A. I. Bobbitt, then, dower having never been assigned to Mary E. Middleton, the widow of A. I Bobbitt, deceased, W. B. Mann only acquired under said deed an equitable one-third interest in the lands embraced in said deed -- an interest which he could have only enforced through a court of equity. McKenzie v. Donald, 61 Miss. 452, 455. In the case of Morton v. Carroll, 68 Miss. 699, 9 So. 896, the lands were sold, and the widow shared in the proceeds. It is held in the case of Rule v. Broach, 58 Miss. 552, that, the vendee having acquired only an equitable interest in the unassigned dower interest in the lands, he could not defend by his deed an action of ejectment brought by the heirs. This being the law, W. B. Mann, nor those holding under him, could not have defended against an action of ejectment by the heirs of A. I. Bobbitt, deceased, until they had lost their right of action by failing to bring suit within 10 years after they became of age. Having the right to bring an action of ejectment, and failing to exercise such right for more than ten years after they became of age, and W. B. Mann and those holding under him having held the lands in peaceable and adverse possession for more than ten years after they became of age, they had been long since barred at the time they brought this suit.

It is further held in the case of Rule v. Broach, 58 Miss. 552, that the purchaser of the lands of a decedent from the widow, whose dower has not been allotted, acquires no title as against the heirs, because of the rule in this state that the right of dower is not assignable (see the facts in this case). See Ligon v. Spencer, 58 Miss. 37, for definition of unassigned dower.

Dower having not been assigned, the right was lost to the widow in ten years after she abandoned the premises. She abandoned the premises in 1867. Therefore her right of dower was barred in 1877, at which time the heirs of A. I. Bobbitt had the right of ejectment against any one then in possession, and, they having failed to exercise this right for the period of ten years after they arrived at their majority, they had long since lost their right of action against W. B. Mann and those claiming under him, at the time they brought this suit. Westbrook v. Hawkins, 59 Miss. 499.

It was error for the court to admit the testimony of Lucy Miller, one of the plaintiffs in the court below, to prove the death and the date of the death of Mary E. Middleton, when she admitted that she had not seen Mary E. Middleton for fourteen years, and only testified to what purported to be the statements of Henry A. Middleton, the surviving husband of Mary E. Middleton. This character of testimony is only admissible to prove pedigree, and then only when the party making the statements is dead. The testimony of Mrs. Miller shows in this case that Henry A. Middleton was living, and that the daughter of Mary E. Middleton was living and both residing within the jurisdiction of the court in which she was testifying. She also shows that one of the plaintiffs in the court below, B. B. Bobbitt, was residing at the time she was testifying in Franklin county, Miss. the county in which Mary E. Middleton is claimed to have died. 1 Greenleaf on Evidence (16th ed.), p. 197, § 114b; Gillett on Indirect & Collateral Evidence, p. 198, § 143; 16 Cyc., p. 1231, § 3 (primary evidence unattainable); 7 A. & E. Enc. Law (1st ed.), p. 73, art. 31; Fulkerson v. Holmes, 117 U.S. 397, 6 S.Ct. 780, 29 L.Ed. 915 (1886).

In ejectment defendant's possession of the land will be presumed to be rightful until plaintiff shows title. Plaintiff's bill of particulars must show title from the government down, and where such bill of particulars fails to show title peremptory instruction is proper. Goforth et al. v. Stingley et al., 79 Miss. 398, 30 So. 690. In this case the appellee fails to show title in A. I. Bobbitt, by their bill of particulars, and also by their evidence.

It is claimed by counsel for appellees that the estate of A. I. Bobbitt was never declared insolvent for the reason that the administrator did not file, with his petition for the estate to be declared insolvent, a schedule of the assets and liabilities of the estate, and for the further reason that the heirs did not have notice of this petition before the probate court. This contention is certainly erroneous, as the record now pending before the court shows that the administrator complied strictly with the law then in force. The estate was declared insolvent under Code 1857, p. 448, art. 98, which did not require that the minors, without guardian, should be served with notice. Yet they were all served with notice. Lucy Bobbitt and Dick Bobbitt, were served personally, and all the heirs were served by publication upon an order of the probate court, as will appear from pages 155 and 156 of the record in this case, as provided under Code 1857, p. 429, art. 22, and proof of said publication made, as will appear from pages 159 and 160 of this record. In all proceedings in the probate court affecting the right or interest of an infant, it was necessary under the Code of 1857 that his guardian be summoned, if he had one, and if his guardian was adversely interested, or failed to appear, then that a guardian ad litem be appointed for him. It was not required in any case that the infant should be summoned, but it was required that he have a guardian in court to represent him. Neither was it necessary for the record to show that he had neither father nor mother nor guardian under Code 1871, § 1148. Burrus v. Burrus, 56 Miss. 92; Bailey v. Fitzgerald, 56 Miss. 579. This rule as to notice to minors applies the same to sales of land as to insolvency proceedings, as will be seen from Railway Co. v. Blythe, 69 Miss. 939, 950, 11 So. 111, wherein the rule is expressed in this language: "In this State it is a well-settled rule that notice to minors in proceedings in the chancery court for the sale of land derived from their ancestors is unnecessary."

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