Keel v. Jones

• Decision Date: 19 October 1908
• Docket Number: 13,157
• Court: Mississippi Supreme Court
• Parties: WILLIAM S. KEEL ET AL. v. JOSEPH T. JONES ET AL

47 So. 385

93 Miss. 244

WILLIAM S. KEEL ET AL. v. JOSEPH T. JONES ET AL

No. 13,157

Supreme Court of Mississippi

October 19, 1908

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

Keel and two others, appellants, were, with others, complainants in the court below; Jones and others, appellees, were defendants there, from a decree sustaining a demurrer to the bill appellants appealed to the supreme court.

The suit was begun in 1904, by Keel and four others, being the five children of William S. Keel, deceased, against their mother, Maria A. Keel and against appellees Jones and the Gulf Coast Lumber Company. The complainants sought the cancellation of certain deeds to lands formerly belonging jointly to the complainants and their mother by inheritance from William S. Keel, deceased, which had been sold in 1888 under a decree of the chancery court in a suit for partition. The pleadings and proceeding in the partition suit were made an exhibit to the complainants' bill and showed that the partition proceedings had been brought by two of the present complainants, at that time infants, by their mother as next friend, the then adult complainants being defendants therein and that the mother had bought the land at the partition sale. The exhibit further showed that the three appellants who were adults at the time of the partition sale, answered the bill in the partition suit admitting its averments to be true and that they received their distributive shares of the proceeds of the partition sale, and voluntarily executed receipts to their mother therefor. The opinion of the court further states the facts.

Appellees Jones and the Gulf Coast Lumber Company separately demurred to the appellants' bill, on the grounds that such of the complainants in the present suit as were adults when the partition sale was made were, by their conduct in participating in the partition proceeding and executing receipts for their shares of proceeds of the partition sale estopped to question the validity of said proceedings; and that, as concerned the complainants who at the time of the partition sale were infants, they had failed, within two years after reaching majority, to review the proceedings complainants as were adults when the partition proceedings were instituted, the present appellants, but overruled them as to those complainants who were infants at the time of said proceedings.

Affirmed.

W. R. Harper, for appellants.

The partition sale, under the proceedings shown in the exhibit to the bill in the present suit, was void as to the infants, hence was and is void as to all the parties therein concerned. Weis v. Aaron, 75 Miss. 138, 21 So. 763; Moore v. Sommerville, 80 Miss. 333, 31 So. 793, 32 So. 294.

The partition sale was void, because the chancery court acquired no jurisdiction over the persons of the infants, in the partition suit of 1888, under which the lands in question were sold to Mrs. Maria A. Keel, appellants' mother. Roodhouse v. Roodhouse, 132 Ill. 362; Simpson. v. Coldwater, 6 Caldw.(Tenn.) 629; Prince v. Clark, 81 Mich. 168.

The chancery court never acquired jurisdiction over the subject matter of the partition suit, that is, it never acquired jurisdiction to order a sale of the realty instead of a division thereof in kind. Cox v. Kyle, 75 Miss. 667, 23 So. 518; Thatcher v. Powell, 6 Wheat. 118; Bank v. Johnson, 7 Smed. & M. (Miss.) 613; Galpin v. Page, 18 Wall. (U. S.) 370; Claxton v. Claxton, 56 Mich. 557; Kirkland v. Texas Express Co., 57 Miss. 319; Mackin v. Wilds, 106 La. 1, 30 So. 257.

The partition sale was void because (1) not made for cash, and because (2) made without adequately securing compensation to the owners. Blythe v. Hernando Bank, (Miss.) 17 So. 4; Scott v. Toledo, 36 F. 385; Chicago, etc. Co. v. Chicago, 166 U.S. 226.

The sale was absolutely void, because Maria A. Keel, mother of appellants, could neither as next friend nor as guardian purchase at the partition sale. Code 1880, § 2115; Downs v. Richards, 4 Del. (Chan.) 416.

On demurrer there is nothing shown in the appellants' bill to warrant the application of any statute of limitation or other equitable defense. Martin v. Gilleylen, 70 Miss. 324, 12 So. 254; Foster v. Canning Co., 71 Miss. 624, 15 So. 931; Sharpley v. Plant, 79 Miss. 175, 28 So. 799; Gibson v. Currier, 83 Miss. 255, 35 So. 315.

The appellants can in no way be precluded from this proceeding on the ground of estoppel. The only thing in their bill on which such a defense can in any way be based is the allegation that the adults, before the sale, executed a receipt in blank which their mother filled out. But the bill distinctly avers that they never received one cent of money from her on account of these lands, at any time. A receipt is merely prima facie evidence of a fact, and may be contradicted; and the bill does contradict the averments of such receipts. With this allegation that no money had ever been paid to appellants, there was no necessity for offer to do equity on their part. The question of bona fide purchaser without notice will not change the situation.

Ford, White & Ford, for appellees.

It is to be noted that the appellants' bill was filed more than sixteen years after the partition sale of the lands, and about seven years after the youngest of the appellees arrived at adult age. The bill makes no explanation of this long inaction.

A judgment or decree in which minors are plaintiffs or complainants is res judicata just as though they were adults. Burkett v. Burkett, 81 Miss. 583, 33 So. 417; Johns v. Harper, 61 Miss. 142.

It is shown by the record that in the partition suit three of the present appellants were defendants therein, each being an adult; that these three filed answer in writing severally signed by them and admitting therein that the allegations of the bill for partition were correct. With such answer admitting the averments of the bill, what was there left to prove? It is true the bill was not sworn to, but there is nothing in the statute law requiring such bill to be sworn to. The answer filed by the defendants, the present appellants, was admissible in evidence against them. 1 Encyc. Ev., 445; Greenleaf v. Highland, 1 Miss. (Walker), 375; Hire v. Littel, 20 N.J.Eq. 443; Taylor v. Webb, 54 Miss. 364.

The alleged infant defendants in the partition suit were represented by their mother as next friend. It has been twice held by this court that a previous order from the court authorizing a suit in behalf of an infant by a prochein ami is not necessary. Kraus v. State, 54 Miss. 644; Bull v. Dangerfield, 55 Miss. 602.

It is contended by opposing counsel that the partition sale was absolutely void because the mother of appellants, who instituted the suit, and who acted as next friend of the infants concerned, became the purchaser of the realty at the partition sale. Her purchasing the property is more a matter of propriety than of law. If the purchase was made with intent to defraud and wrong the infants, the infants by timely proceedings after reaching adult age, had ample time to redress the wrong. However, the fact that the court confirmed the sale should show that the allegation of unfairness upon the mother's part is more an opinion of the pleader than the statement of a fact.

The appellants who were adults at the time of the partition sale by receiving their pro rata shares of the purchase price of the lands, were and are estopped to question the validity of the sale. They gave receipts for such shares, and the receipts...