Lake v. Perry

• Decision Date: 31 May 1909
• Docket Number: 13,560
• Citation: 95 Miss. 550,49 So. 569
• Court: Mississippi Supreme Court
• Parties: ALVIN LAKE v. JOHN C. PERRY

49 So. 569

95 Miss. 550

ALVIN LAKE v. JOHN C. PERRY

No. 13,560

Supreme Court of Mississippi

May 31, 1909

FROM the chancery court of Grenada county, HON. ISAAC T. BLOUNT Chancellor.

Lake appellant, was complainant in the court below; Perry appellee, was defendant there. From a final decree in defendant's favor the complainant appealed to the supreme court. The opinion of the court fully states the facts.

Reversed.

Cowles Horton, for appellant.

The proceedings of June, 1899, in Ex parte Alvin Lake, No. 1137 upon which appellee relies in this case, are absolutely void and should have been excluded. In the first place, the chancellor in vacation had no authority to entertain these proceedings, and the decree signed by him is worthless for all purposes. The record in this proceeding discloses the fact that the minor's application sought the removal of his disabilities "at the next session" of the chancery court, but, nevertheless, the chancellor in vacation, on the same day the application was filed, undertook to grant this decree. Code 1892, § 493, under which these proceedings must have been had, confers the power solely upon the chancery court, and being in derogation of the common law and conferring special and limited powers upon the court, it is to be strictly construed and against the exercise of a doubtful power. By no sort of construction can it be said that this section confers any power upon the chancellor (Black, Judg. sec. 179; 23 Cyc. 675; Adams v. Wright, 30 So. 575; Wilson v. Rodewald, 61 Miss. 232), and his action was entirely unwarranted and his decree invalid.

In the case of Marks v. McElroy, 67 Miss. 545, 7 So. 408, a case, which, in our judgment, controls this case throughout, this court said: "The power conferred by our code upon the chancery court to remove the disabilities of minors is not judicial in its character; it may be exercised by the legislature without the intervention of other authority, or committed to any officer or commission having no judicial authority. The relief sought is private in its character, affecting no right of others; the privilege and the method of availing of it are created and defined by the statute, and the proceedings are valid only when in conformity to its regulations. Under such circumstances the court but exercises a statutory power and it is incumbent upon one relying upon the decree to show that the court had acquired jurisdiction under the law; no presumption of jurisdiction arises from the mere fact of its omission." See also Hindman v. O'Connor, 13 L. R. A. 490. These cases are supported by an unbroken line of authorities, among which are the following: Black, Judg. secs. 279, 280; Freem. Judg. sec. 123; Ballard v. Davis, 31 Miss. 525; Currie v. Stewart, 27 Miss. 52; Hamilton v. Lockhart, 41 Miss. 460; Temple v. Hammock, 52 Miss. 360; Fitzpatrick v. Beal, 62 Miss. 244; Stampley v. King, 51 Miss. 728; County v. Buckley, 85 Miss. 713, 38 So. 104; Hawkins v. Carroll Co., 50 Miss. 735; Lester v. Miller, 76 Miss. 309, 24 So. 193; Harris v. State, 72 Miss. 960, 18 So. 387; White v. Railroad Co., 64 Miss. 566, 1 So. 730; Craft v. DeSoto Co., 79 Miss. 616, 31 So. 204; Rogers v. Hohn, 63 Miss. 578; Bank v. Johnson, 7 Smed. & M. 449; Vick v. Mayor, 1 How. 379; Harey v. Tyler, 69 U.S. 2; Thatcher v. Powell, 6 Wheat. 127; Galpin v. Page, 85 U.S. 350.

The record discloses also that no notice of the application was ever given to the minor's father (his only living parent) although he was within the jurisdiction of the court. The statute (Code 1892, §§ 439 et seq.) is madatory in its requirement that the parents shall either join in the application in the first instance, or be made parties defendant as in other cases. The failure, then, to observe this plain requirement renders the proceedings a nullity, without regard for the other reasons urged against them. Howry v. Galloway, 48 Miss. 587; Temple v. Hammock, 52 Miss. 360; Koch v. Bridges, 45 Miss. 258; Woodruff v. Okolona, 57 Miss. 810; Gibson v. Currier, 83 Miss. 254, 35 So. 315.

Having shown that these proceedings of 1899 are absolutely void, we shall endeavor to show that the learned court below erred in dismissing appellant's bill and finding for appellee. Both the court and counsel concede the well settled proposition that an infant vendor may recover his property sold during infancy. Hill v. Anderson, 5 Smed. & M. 216; Wallace v. Latham, 52 Miss. 291; Allen v. Poole. 54 Miss. 323; Brantley v. Wolfe Co., 60 Miss. 432; French v. McAndrew, 61 Miss. 187; Harvey v. Briggs, 68 Miss. 66, 8 So. 274; Shipp v. McKee, 80 Miss. 746, 31 So. 197, 32 So. 281.

In speaking of the effect of a void judgment, Judge Freeman observes: "A void judgment is in legal effect no judgment at all. By it no rights are divested. From it, no rights can be obtained. Being worthless in itself, all proceedings under it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are equally worthless." Freem. Judg. (3d ed.) sec. 117; Freem. Ex. sec. 20. As said in Lester v. Miller, 76 Miss. 309, 24 So. 193, "A void judgment or order may be disregarded collaterally and the lapse of time will not help its invalidity." See also Mastin v. Gray, 27 Am. Rep. 149; McComb v. Ellet, 7 Smed. & M. 505; Kramer v. Holster, 55 Miss. 243; Harris v. State, 72 Miss. 960, 18 So. 387; 12 Enc. Pl. & Pr. 201, 202, 204, 213. It should, then, have been excluded and should have had no influence in this case.

Learned counsel for the appellee announce a very familiar and elementary rule of law, that these innocent purchasers for value without notice would be protected as against any collateral attack on this decree for the sale of the lands if such decree was merely voidable or irregular; but the other principle is equally well settled, to-wit: that where a decree is absolutely null and void, it is subject to attack anywhere, collaterally or otherwise.

Appellee does not contend that he was misled or deceived by a single act or statement of appellant, in fact, every statement by appellant was and is true. Appellee testifies that he knew he was dealing with a minor, and for this reason retained his money. He sought to clinch the deal by these proceedings, and now, when it becomes apparent that they are void, appellee seeks to estop appellant, not upon any deception or fraud, but upon the fact that these proceedings were had.

In fact the only thing which may estop an infant in any case is actual, active and wilful fraud and misrepresentation. Demourelle v. Piazza, 77 Miss. 433, 27 So. 623.

The dead doctrine of laches, which does not apply in this state. The minor had the full ten years within which to file this bill after reaching his majority, and no lapse of time may be used against him. This has been repeatedly decided in this court. Brantley v. Wolfe, Allen v. Poole, Wallace v. Latham, Shipp v. McKee, supra; Cox v. Mortgage Co., 88 Miss. 97, 40 So. 739.

Appellant does not offer to refund the consideration. The law does not require him to do so. In the early case of Hill v. Anderson, 5 Smed. & M. 216, it was said "An infant vendor may recover back his property, real or personal, but in such cases he must refund what he has received." Judge CHALMERS seemingly took the same view in Ferguson v. Bobo, 54 Miss. 121, but the court will note that in neither of these cases was the point necessary to a decision of the case. When the question became material, this same judge, who rendered the opinion in Ferguson v. Bobo, laid down this rule as being the correct one on the question: "If the minor has in possession any of the consideration when he disaffirms or after he became of age, he must return it . . . But if he has lost, or squandered the consideration during minority, this is nothing more than the law expects of him, and he cannot be required to purchase the right of reclaiming his own by still further abstractions from his estate." Brantley v. Wolfe, supra.

In Hafvey v. Briggs, supra, it is said: "That the minor must refund if he elects to disaffirm is true, provided he has in his possession the consideration received by him when he elects to disaffirm." We find it stated in Cyc. (vol 22, p. 557) that "if during infancy he has disposed of the property received, or spent or wasted the consideration, he is not obliged to make restitution upon his avoidance." On page 614, same volume, it is said: "The true rule, is this: where the infant upon his arrival at majority, or at the time he seeks to disaffirm still has the consideration received or any part thereof, he must upon his disaffirmance, return it." The supreme court of Nebraska takes the view and, in a masterly opinion, holds that the minor is never to be required to disaffirm unless he has the specific consideration received by him in his possession at the time of disaffirmance. Englehardt v. Pritchett, 26 L. R. A. 177, and authorities cited. See also, the supreme court of Iowa in the case of Leacox v. Griffith, 76 Iowa 89. In the case of Macgreal v. Taylor, 167 U.S. 668 (42 L.Ed. 325), the United States supreme court uses this language: "It is well settled that it is not a condition of the disaffirmance by an infant of a contract made during infancy that he shall return the consideration received by him, if, prior to such disaffirmance and during infancy the specific thing received by him has been disposed of, wasted, or consumed and cannot be returned." "But if the consideration has passed from his hands, either wasted or expended during minority, he is not thereby to be deprived of his right or capacity to avoid his deed, any more than he is to avoid his executory contracts. . . . It is not necessary that the other party be placed in statu quo." Note...