Ladd v. Craig
| Decision Date | 21 December 1908 |
| Docket Number | 13,350 |
| Citation | 94 Miss. 659,47 So. 777 |
| Court | Mississippi Supreme Court |
| Parties | HARRIETT K. LADD v. WILLIAM S. CRAIG ET AL |
FROM the chancery court of, first district, Yalobusha county, HON ISAAC T. BLOUNT, Chancellor.
Craig and other, appellees, were complainants in the court below. Mrs. Ladd, appellant, was defendant there. From a decree in complainants' favor defendant appealed to the supreme court.
The facts are stated in the opinion of the court.
Reversed and remanded.
William C. McLean, for appellant.
It was not the duty of the administrators to preserve court papers it was the duty of the clerk to do so, and the fact that the papers are missing is no evidence of negligence upon the part of the administrators, or the purchaser of the lands. Neither the purchaser of the lands, nor the administrators are to be prejudiced in the least by the fact that the papers are missing from the record, and our court has repeatedly held that the fact that papers are missing from the record is not to be considered, so as to at all prejudice the rights of the parties who claim by virtue of the proceedings. Surely a purchaser of lands at in administrator's sale is under no duty or obligation whatever to see that the court papers are preserved.
The deed from the administrators to Black shows that the total amount bid for the land was the sum of $ 924; one third of this sum is $ 308, and the deed acknowledged the payment of this sum; and the deed also recites that the purchaser gave his two bonds, each for the sum of $ 308, and the final account of the administrators, which they presented and which was passed on and approved and accepted by the court as a true and correct final settlement, charged the administrator with, first, the $ 308, the cash payment; and secondly, with the $ 618, the deferred payments.
The record conclusively shows that Black became the purchaser of this land, and that he paid every cent of the purchase money to the administrators. There is nothing at all in the record even suggesting or intimating that there was any fraud or unfair dealings, either upon the part of the administrators or upon the part of Black, the purchaser of this land at the administrators' sale. There is no evidence in the record what was the value of the property sold. We must bear in mind the interest which the purchaser obtained was simply a reversionary interest, was purely speculative, and the facts in the case disclose that the widow lived over thirty-three years after this sale and during all of this time, the purchaser was kept out of the enjoyment of the interest he purchased. This case is a fit illustration of the uncertainty as to the value of a reversionary interest in real estate.
The decree ordering the sale of lands does not name where the lands shall be sold, except that it be sold in the county in which they are situated--the decree reciting: "Said administrators shall at the time and places appointed, being within the counties where the lands are situated, sell at public vendue to the highest bidder," etc. Under the law as it then existed, and as it had then existed in this state at least since 1857, the chancery court was empowered to name a place other than the courthouse, where the land could be sold. Code 1871, § 1038.
The court had the right in the first instance to direct the sale of these lands at Oakland, and it necessarily follows that the court had the right to approve the sale that was made at Oakland. This is not really open to debate, but all of the authorities are uno flatu concur in saying that confirming the sale, cured all defects in selling at the wrong place. Henderson v. Herrod, 23 Miss. 434; Tate v. Bush, 62 Miss. 145, 17 Am. & Eng. Ency. of Law (2d ed.), 993 and notes, and extended notes to 29 Am. St. Rep. 495.
While the court below did not decide the question, yet, it was sought in the court below to nullify the decree ordering the sale of the lands, by showing that the parties were not served with process. The rule is well settled in this state and elsewhere (see Cox v. Simmons, 57 Miss. 183; Summers v. Sivley, 57 Miss. 712; Duncan v. Gerdine, 59 Miss. 550) that the evidence must be clear, direct, positive, affirmative and absolutely convincing that the parties were not served with process. The courts will never disturb a judgment or a decree of a court of record upon the ground that the parties were not served with process, except where the evidence is clear and convincing--in fact, if there is any doubt at all, the doubt will be resolved in favor of sustaining the decree.
The final decree, rendered November, 1872, specifically recites that the parties, naming them, had been served with process.
The action is barred under the two years' statute. Code 1892, § 2751; Code 1880, § 2631; Code 1871, § 2160. This suit is a suit in the nature of a bill of review, and consequently must be brought within two years after the removal of the disabilities of minority.
W. V. Sullivan, for appellees.
The widow of deceased being in possession until July, 1906, the statute of limitations did not run until that time. There never has been and the record does not show service of process to declare the estate insolvent and sell it. Affirmative proof shows that those who were interested in the attempt to declare the estate insolvent wished to steal this property. It does not appear that Black ever paid one cent for the land in question. He neither paid anything nor did anything that should tend to confirm the title.
Mrs. Black, now Mrs. Ladd, the party in interest, is living and according to her showing never owned any interest in the land. No process was ever served upon any one of the children in this case.
Appellees, who are children of William B. Craig, deceased, bring their suit for an injunction against appellant to restrain her from prosecuting an action of ejectment against tenants of appellees in possession of certain lands situated in Yalobusha county.
Both parties to the controversy deraign title from William B. Craig, who owned the land at the time of his death, in 1869. In November, 1871, Moore and Green were appointed administrators of the estate, and some time thereafter exhibited their bill in the chancery court, making all the heirs, some of whom were minors, parties defendant, asking that the estate be declared insolvent and the lands sold to pay debts. On November 7, 1872, a decree was entered sustaining the prayer of the bill, declaring the estate insolvent, and directing the sale of the lands. This decree recited that "summons has been issued to and duly and legally served on the heirs at law and distributees of said estate;" and all these heirs are named in the decree. Prior to the rendition of this decree, a guardian ad litem had been appointed for the minor defendants, and an order made directing the issuance of process.
The decree of November 7, 1872, provided: ...
To continue reading
Request your trial