Mobile & Ohio Railroad Co. v. Swain

• Decision Date: 30 January 1933
• Docket Number: 30349
• Citation: 164 Miss. 825,145 So. 627
• Parties: MOBILE & OHIO RAILROAD CO. v. SWAIN
• Court: Mississippi Supreme Court

145 So. 627

164 Miss. 825

MOBILE & OHIO RAILROAD CO. v. SWAIN

No. 30349

Supreme Court of Mississippi

January 30, 1933

Division B

1 EQUITY.

Chancery court acquired jurisdiction of attachment suit where defendant did not plead specially to court's jurisdiction but defended generally (Code 1930, section 173).

2. EXECUTORS AND ADMINISTRATORS. Certificate of Alabama probate judge showing appointment of administratrix de bonis non held sufficient to authorize such administratrix to file attachment suit in Mississippi (Code 1930, section 1586).

The letters de bonis non certified by probate court of proper county in Alabama recited that complainant was administratrix de bonis non of the decedent's estate, and was duly qualified and acting administratrix of said estate, and was liable to account to such probate court for any property or money coming into her hands as result of claim pending against defendant railroad for dividends or stock in such railroad standing in decedent's name, or for any other property or money which she might receive as administratrix de bonis non of the estate. Such certificate further authorized administratrix de bonis non to execute release for such stock or money when received by her.

3. EXECUTORS AND ADMINISTRATORS.

That certificate of probate court of sister state appointing administratrix de bonis non did not comply with federal statute held not to preclude this state from giving effect thereto (Code 1930, section 1586; 28 U.S.C. A., section 687; Constitution United States, article 4, section 1).

4 ESTOPPEL.

Railroad having induced complainant to take out letters of administration de bonis non in Alabama for purpose of collecting dividends and acquiring possession of stock in decedent's name held estopped from contending that such proceeding was void.

5. EXECUTORS AND ADMINISTRATORS.

Chancery court held to have jurisdiction of attachment suit by administratrix de bonis non against railroad to recover dividends and possession of stock alleged to belong to decedent.

6. EXECUTORS AND ADMINISTRATORS. Attachment suit by administratrix de bonis non to recover dividends on railroad stock declared since 1898 and possession of stock held not barred by laches.

The suit was not barred by laches because no dividends were declared until 1898, which was four years after stockholder's death, and there was no showing that complainant and other heirs of deceased stockholder knew of their rights to dividends or of decedent's ownership of the stock until just before suit was brought, and nothing occurred entitling railroad to take and keep dividends against demand of stockholder, his administrators or heirs and deceased stockholder's administratrix, not finding stock in decedent's effects, and not knowing of its existence, was not negligent in failing to discover its existence.

7 EQUITY. "Laches" is not mere delay, but delay working disadvantage to another.

So long as parties are in same condition, it matters little whether one presses right promptly or slowly within limits allowed by law.

8. LIMITATION OF ACTIONS.

Limitations against deceased person, in cases of trust, operate only from time administrator knows of rights under trust.

HON. A. B. AMIS, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. A. B. AMIS, Chancellor.

Suit by Mrs. Dillon Swain, administratrix de bonis non of the estate of B. A. Simmons, deceased, against the Mobile & Ohio Railroad Company. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Wilbourn, Miller & Wilbourn, of Meridian, and Carl Fox, of St. Louis, Missouri, for appellant.

The petition of Mrs. Dillon Swain for letters of administration de bonis non, and the decree of the probate court of Sumter county, Alabama, granting the letters, and the bond of the administratrix de bonis non, and the letters of administration de bonis non, and the certificate of P. B. Jarman, Judge of the probate court, Sumter county, Alabama, were not certified according to law.

Section 905, of the United States Revised Statutes; Section 1723 of the Mississippi Code of 1930.

Such letters (letters of administration like the records of all courts in other states), are admissible in the courts of this state only when authenticated according to the Federal Statutes, there being no legislation in this state upon the subject.

Hope v. Hurt, 59 Miss. 174.

Compare section 2091 of the Code of 1880 with section 1723 and section 1586 of the Code of 1930, and it will be found that section 2091 of the Code of 1880 covers both sections 1723 and 1586 of the Code of 1930.

Section 1723, Code of 1930, provides how foreign executor or administrator may sue in this state; section 1586, Code of 1930, provides how certified copies of appointment of foreign administrators shall be admitted in evidence.

The latter portion of section 2091 of the Code of 1880, which was in force at the time of the decision in Hope v. Hurt, 59 Miss. 174, is almost in the exact words as section 1586, of the Code of 1930.

Appellee has not complied with section 1586 of the Code of 1930, for the reason that such section which provides that, "a duly certified copy of the record of appointment and qualification of executor, administrator --in the territories, District of Columbia or in foreign countries according to the laws thereof--shall be evidence, etc.," does not state by whom it shall be duly certified.

It is settled law in Alabama that where there has been an administration on an estate and a final settlement and a decree discharging the administrator, after the lapse of the term at which the decree was rendered, the probate court has no power to set aside the decree or to reopen the administration, and the issuance thereafter of second letters of administration, or of letters of administration de bonis non, is void.

Hickey v. Stallworth, 143 Ala. 535, 39 So. 267; Medley et al. v. Shipes et al., 177 Ala. 944, 58 So. 304.

The Mobile and Ohio Railroad Company is not such a non-resident of the state of Mississippi, and is not absent or absconding therefrom as comes within the meaning of the laws of Mississippi providing for attachments in chancery.

The declaration of a dividend by a corporation creates a debt against it and in favor of the stockholders -- a debtor and creditor relationship being established between the corporation and each of its stockholders. And, if the dividend has not been merely declared, but the fund for its payment has been actually set aside and distinguished from the general mass of the company's funds, the fund so set aside becomes a trust fund for the payment of the dividend, which cannot be reached by the general creditors of the corporation, and when it becomes a trust fund for the payment of dividends, it cannot be diverted and used for any other purpose.

Interborough Consolidated Corporation, Bankrupt, 288 F. 334, 32 A.L.R. 932.

Laches bars the claim of a stockholder for his part of dividend alleged to have been withheld from him but paid to other stockholders.

Foss v. Peoples Gas Light & Coke Company, 241 Ill. 238, 89 N.E. 351.

A delay of more than ten years in bringing suit for dividends and beyond the time limited by statute for bringing an action at law, constitutes such laches, prima facie, as will bar relief in equity.

Citizen's Savings & Trust Company v. Belleville & S. I. R. Company, 157 F. 73.

The liability of an incorporated company to pay the dividends on certain shares owned by the plaintiff is not such a trust as will take the case out of the statute of limitations.

Kane v. Bloodgood, 11 Amer. Dec. 417.

Courts of equity refuse relief, because of laches, on account of the injustice of imposing on defendant the proof of transactions long past to protect rights for a long time unchallenged by his adversary, with full knowledge of the circumstances.

Abraham v. Ordway, 39 L.Ed. 1036.

The generally accepted doctrine appears to be that laches is not like limitation a mere matter of time, but is principally a question of the inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition or relations of the property or the parties. Since lapse of time has a tendency to obscure evidence, and often makes it impossible to discover the truth, it is, of course, one of the elements to be considered by the court in applying laches to stale claims, but it is only one, and while important, it is not ordinarily the controlling or most important one. Hence, it has been said, laches in legal significance, is not mere delay, but delay that works a disadvantage to another.

10 R. C. L., page 396; Comans v. Tapley, 101 Miss. 203, 57 So. 567.

While there is some authority to the contrary, it is very generally held that an admission, in order to constitute an estoppel, must relate to a matter of fact, and a person will not be estopped by an admission as to the law. A fortiori, the expression of opinion by one of the parties on a question of law where both parties have full knowledge of the facts, cannot create an estoppel.

North Avenue Building & Loan Ass'n v. Huber, 121 N.E. 726; Estis v. Jackson, 32 Am. St. 784; 16 Cyc., page 756, par. B; 21 C. J., page 1147, par. 51; Ward v. Ward, 131 F. 946; McKees v. Maughton, 26 P. 354.

No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon an innocent mistake. And while there is authority to the contrary, the weight of authority is that the acts and declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same especially where every fact known to the party sought to be estopped is equally well known to the party...