Moore v. Summerville

• Decision Date: 09 June 1902
• Citation: 32 So. 294,80 Miss. 323
• Court: Mississippi Supreme Court
• Parties: CHARLES Q. MOORE v. ALICE SUMMERVILLE ET AL

32 So. 294

80 Miss. 323

CHARLES Q. MOORE v. ALICE SUMMERVILLE ET AL

Supreme Court of Mississippi

June 9, 1902

March 1902

Suggestion of error denied.

Boothe & Boothe and Miller & Miller, for appellant, after the delivery of the foregoing opinion, filed a lengthy suggestion of error, making the following points:

The affidavit required by § 3421 of the code is not essential to confer jurisdiction. It is only necessary to enable the clerk to make legal publication in vacation, but when the order of publication is made by the court, the presumption is that the order was made on sufficient showing no matter what reason may be assigned in the order. The authorities cited in our brief sustain this view, and we call the court's attention particularly to Cason v. Cason, 31 Miss. 578. We quote from the opinion of the court: "There was no affidavit or sworn bill that the defendant was a non-resident, or had her postoffice at Chicago, Illinois. In fact, she did not live there at all, but in Nebraska, and never heard of the suit until after final decree of partition. The partition was therefore void as to her, and, being void as to her, was, under the facts in the case, void as to the other heirs, defendants." It is true there was no affidavit or sworn bill that the defendant was a non-resident, and had her postoffice at Chicago; but the fact is, such was her residence and postoffice address, and application was made, on the order of the court, setting forth the fact, and a copy of the notice was duly mailed to her. This is not controverted, but is admitted. In any case, whether the publication, as to Alice Summerville, may be held good or bad, the fact that she never heard of the case until after the final decree is irrelevant. We insist that under the rule laid down in Cason v. Cason, 31 Miss. 591, which has never been questioned or overruled, the publication made by order of the court for Alice Summerville was good, and the decree against her was valid and binding. But if it is deemed wisest by the court to overrule that case, and hold that the affidavit is a jurisdictional fact, without which there can be no valid order and publication of notice to a non-resident in any proceeding whatever, then we insist that it does not follow that, because the sale for division was void as to Alice Summerville, it is void as to the other defendants. The case relied on by counsel for appellees does not support this view. The case of Cox v. Kyle, 75 Miss. 669 (23 So., 518), is correctly decided, but it does not affect the question raised here. Winston v. McLendon, 43 Miss. 254, was an insolvent proceeding in probate court for sale of land to pay debts, and service according to law was necessary to give jurisdiction. That does not militate against the rule insisted on here. Burks v. Burks, 66 Miss. 494 (6 So., 244), only prescribes what the affidavit should contain. Hamilton v. Lockhart, 41 Miss. 460, decides that an administrator's sale of land by order of probate court is void if the parties in interest have no notice, and Martin v. Williams, 42 Miss. 210 (97 Am. Dec., 456), only affirms the rule in the probate court. Weis v. Aaron, 75 Miss. 138 (21 So., 763; 65 Am. St. Rep., 594), is not applicable, because that was a judgment at law, and was an entirety. The case of Drysdale v. Canning Co., 67 Miss. 534 (7 So., 541), was an attachment proceeding, and the judgment was held void for want of notice. The case of Hamilton v. Lockhart, supra, is not authority for the contention that a sale being void as to one party is void as to all, and, so far as it applies to this case, has been overruled by Rule v. Broach, 58 Miss. 552, and Moody v. McDuff, Id., 751, to which we call the attention of the court. Sale may be set aside as to some parties in interest, and confirmed as to others, and a decree for the sale of land for division is not, therefore, an entirety. Allen v. Martin, 61 Miss. 78; Rule v. Broach, supra; Moody v. McDuff, supra; Henderson v. Wallace, 72 N.C. 451; Williams v. Westcott, 77 Iowa 332 (42 N. W., 314; 14 Am. St. Rep., 287); Neville v. Kenney, 125 Ala. 149 (28 So., 452; 82 Am. St. Rep., 230); Lyons v. Hamner, 84 Ala. 197 (4 So., 26; 5 Am. St. Rep., 363). The bill filed by Moore was not for partition, but for sale for division. No partition was asked for, and the decree was for sale, and the parties in court are concluded by the sale and confirmation. Evidently a different rule would govern in strictly partition suits, where land is partitioned in kind. In that event no part of the decree could stand unless all parties in interest were in court. No such rule prevails where there has been a sale, and there is no reason for such rule. If the purchaser is satisfied, no one else can complain.

We earnestly insist that the court was misled in holding that, because the partition was void as to Alice Summerville, it was void as to the other heirs, by authorities cited by counsel for appellees, viz.: 17 Am. & Eng. Enc. Law (1st ed.), 810, where it stated that "a decree for partition is a unit, and, if bad in part, is bad in whole, " and to sustain which the case of Corwithe v. Griffing, 21 Barb., 9, is cited in note, which was in fact not a sale of land for division, but simply a division in kind, wholly different from the case at bar. Different rules apply in such cases, for obvious reasons. Our court has sufficiently adjudicated that a decree of sale is not a "unity" or entirety, and may be valid and binding as to some of the defendants, while it is not as to others. "The rule that a judgment is an entire thing, and, if reversed as to one, must be reversed as to all, is only applicable to judgments at law." Voorhis v. Gamble, 6 Mo. App., 1; Dickerson v. Chrisman, 28 Mo. 134. And which rule our supreme court clearly recognizes and adopts in Moody v. McDuff, supra, where the doctrine in Hamilton v. Lockhart is expressly repudiated on that point. It is immaterial to Alice Summerville whether she remains tenant in common with those who were her co-owners, or becomes tenant in common with the purchaser.

OPINION

CALHOON, J.

Counsel have thanks for correcting the statement in the opinion that Alice Summerville did not live in Chicago, but in Nebraska. This was an error by inadvertence from confusing her with another party to this suit, and the opinion is changed to conform, though it is not perceived how it in any way affects conclusions. That she, because of defects in the constructive notice sought to be fixed on her by publication, may reopen the case and have a rehearing, is plain under code 1892, § 519, and this even if she knew of the proceedings. Jacks v. Bridewell, 51 Miss. 881. That the minors may reopen the case is hardly within the range of discussion. Code, § 596. Nothing in the code chapter on partition varies the rights of Alice Summerville or the minors. The technical name of the bill is immaterial. It is of no moment whether or not it is an independent bill, a bill of review, or a bill in the nature of a bill of review, or a supplemental bill, or a supplemental bill in the nature of a bill of review. We adhere to the ruling that in this case, the sale having been made, and the proceeds not distributed, the decree, being void as to some or any of the co-tenants, is void as to all. See authorities cited in brief of counsel for appellees and 17 Am. & Eng. Enc. Law (1st ed.), p. 811, note 1; Freem. Co-Ten., sec. 483; Hull v. Cavanaugh, 6 Mo.App. 143; Holloway v. McIlhenny Co., 77 Tex. 657, 660 (14 S.W. 240); Succession of Poree, 27 La. Ann. 463.

It seems to us the only question to be dealt with in this record is whether the demurrer to the bill was good because William Cannon was made a party. If he was a proper party, the controversy is ended. It is necessary here to give a history of the whole matter. The ground first broken in this litigation was the filing of a bill for partition by C. Q. Moore, the appellant here. He filed his bill January 16, 1898, against Harriet Cannon, the widow of G. B. Cannon, deceased, and the following named heirs of G B. Cannon, namely: Alice Summerville, Jennie Canon, Jimmie Cannon, all adults, and Fannie Cannon, Ella Cannon, and Green Cannon, minors. It must be noted that he does not make William Cannon, who is also one of the heirs of G. B. Cannon, a party to his bill of complaint. His bill avers the death of G. B. Cannon in 1896, seized and possessed of the land in controversy, describing it, and that he is the owner of the undivided interest of said William Cannon in the land by purchasing the same at execution sale under writs of execution against said William Cannon, and that the land is incapable of division in kind, and that the interest of all parties would be best promoted by a sale for division. This is the whole bill of C. Q. Moore, substantially, and under it the prayer is that defendants may be made parties, and a decree of sale made, after setting aside the homestead exemption of the widow, of the remainder of the land, and for general relief. It must be noted in reference to this bill that Alice Summerville was never made a party by service of process or valid publication of notice. It must be further noted that there appears nowhere in that record any exhibit or evidence whatever showing the proceedings of any court terminating in any judgment under which Mr. Moore purchased; the only averment being, as aforesaid, that he was the owner of William Cannon's undivided interest in the land, "having purchased the same under execution." There appears in that record no deposition or recital of any oral statement by any witness in the cause. A pro confesso was taken against the adult defendants. Thereupon three freeholders were appointed to set apart the homestead, who duly made report, and...