Rowell v. Logan

• Decision Date: 12 March 1962
• Docket Number: No. 42232,42232
• Citation: 138 So.2d 737,243 Miss. 479
• Parties: Juanita L. ROWELL et al. v. Myrtis Buchanan LOGAN.
• Court: Mississippi Supreme Court

Page 737

138 So.2d 737

243 Miss. 479

Juanita L. ROWELL et al. v. Myrtis Buchanan LOGAN.

No. 42232.

Supreme Court of Mississippi.

March 12, 1962.

J. M. Travis, Meridian, for appellant.

Riddell & Dabbs, Quitman, for appellee.

LEE, Presiding Justice.

Mrs. Myrtis Buchanan Logan filed her bill, with proper deraignment of title to the described land, against the State of Mississippi and others to quiet and confirm her title against all of the named defendants. The State answered that it could not deny the allegations of the bill, and that the matter should proceed to final determination. Among the named defendants, Juanita L. Rowell and others, being the children of Cleve L. Logan, deceased, by a former marriage, prior to his marriage to the complainant, answered and denied the material allegations thereof. They also made their answer a cross-bill, exhibiting thereto copies of all of the proceedings in Cause No. 6200 of the court, being styled Myrtis Buchanan Logan v. Cleve L. Logan, and prayed for a partial cancellation of the proceedings in that cause, and that their title to the land, as claimed by them, should be quieted and confirmed as against the complainant.

The record does not reflect whether pleadings had been filed by the other defendants who were the offspring of the marriage between the complainant and Cleve L. Logan, or the effect thereof, if such pleadings were filed. In other words, that part of the litigation is not involved on this appeal.

Mrs. Logan, in turn, filed a demurrer to the cross-bill, setting up that there was no equity on the face of the same. The demurrer was sustained, and leave was granted to the aggrieved cross-complainants to appeal to this Court to settle the controlling principles of law, and the cross-complainants perfected their appeal.

The certified copy of the record in Cause 6200, referred to above, showed, and the appellants thus conceded, the following as the background of this litigation: On September 21, 1956, Cleve L. Logan, the husband of Mrs. Myrtis B. Logan, was sentenced to serve a term of three years in the state penitentiary on a charge of rape. On December 18, 1957, Mrs. Logan filed her bill in the chancery court, under Sec. 2735, Code of 1942, Rec., against her husband, Cleve L. Logan, for a divorce, custody of their five minor children, support for them and herself, counsel fees and suit money, the use of certain personal property and of 135 acres of land, as therein described, for herself and children, and the impression of a lien against the property to secure the payment of such support funds as might be fixed by the court. Process was duly and legally served on the defendant.

On January 18, 1958, a final decree was entered in the cause which granted the divorce and custody of the children of Mrs. Logan, support for herself and children at the rate of $75 per month, all other relief as prayed for, and impressed a lien on the real estate and property to assure payment of the support money.

Thereafter, Cleve L. Logan executed deeds to his twelve children, all of whom are defendants, whereby each was conveyed a one-twelfth interest in the property. On June 3, 1960, Cleve L. Logan filed a petition in said Numbered Cause 6200 for modification of the final decree of January 18, 1960, setting up many alleged reasons therefor, together with an alleged change in conditions, and prayed that he might be relieved of the $75 per month adjudged against him, and that the lien on the property, or a part thereof, be cancelled. Mrs. Logan answered the petition for modification and denied all of the material allegations thereof. She made her answer a cross-bill and alleged that Logan had failed to pay any of the benefits provided for in the final decree of January 18, 1958, and was then in arrears for twenty-eight months of support at $75 per month, and other specified amounts, for a total of $2,364.25; that a lien had been impressed upon the property owned by Logan to secure such payments; and she prayed for the appointment of a special commissioner to sell the land and apply the proceeds to the payment of said judgment. Her counsel sent a copy of the answer and cross-bill to A. J. Reese, Logan's solicitor of record. On June 14, 1960, at the instance of both parties, the cause was set for hearing in vacation at the convenience of the court and the parties.

On September 2, 1960, Cleve L. Logan died; and on October 10, 1960, Jim Culpepper, Chancery Clerk, was appointed Administrator de bonis non with will annexed of the estate of said decedent.

On October 11, 1960, the motion to revive the cause in the name of Jim Culpepper, Chancery Clerk, etc., as defendant was sustained. On January 13, 1961, following motions therefor, a decree pro confesso was ordered against Jim Culpepper, Chancery Clerk, Administrator, etc., it being recited that '* * * the Court finding that said defendant has been served with process in the manner and form and for the length of time provided by law and said defendant has wholly failed to appear, plead, answer or demur to the Cross-Bill of Complaint and the Court finding that the complainant is entitled to a Decree Pro Confesso against said defendant; * * *' Thereafter, on January 19, 1961, the court, by its decree, adjudicated that Cleve L. Logan, at the time of his death, was in default in the sum of $2,664.25, under the terms of the decree of date January 18, 1958; that a sale of the property should be made to satisfy the lien, and that a special commissioner should be appointed to sell the land. After proper notice, the land was sold for $3,125 to Mrs. Myrtis Buchanan Logan, and thereafter, at the time and place set, the sale was confirmed, and the proceeds were distributed in accordance with the decree of the court.

By their cross-bill, the appellants alleged that they were the owners of the land in question, and that they and the complainants claim the same from a common source; that the court was without jurisdiction of the parties to this suit because case No. 6200 was revived and Jim Culpepper, Chancery Clerk, was appointed Administrator of the Estate of C. L. Logan, Deceased, and no process was...