Shannon v. Summers

• Decision Date: 08 May 1905
• Citation: 86 Miss. 619,38 So. 345
• Court: Mississippi Supreme Court
• Parties: JAMES M. SHANNON ET AL. v. THOMAS SUMMERS ET AL

38 So. 345

86 Miss. 619

JAMES M. SHANNON ET AL. v. THOMAS SUMMERS ET AL

Supreme Court of Mississippi

May 8, 1905

April 1905

FROM the circuit court of, first district, Yalobusha county, HON SAMUEL C. COOK, Judge.

Shannon and others, appellants, were plaintiffs in the court below Summers and others, appellees, were defendants there. From a judgment in defendants' favor the plaintiffs appealed to the supreme court.

Judgment reversed and remanded.

E. D Stone, and I. T. Blount, for appellants.

The plaintiffs and defendants all claim title from common source--Aaron McCameron, deceased, who died about 1875. The plaintiffs are the heirs, or the assignees of the heirs, of the said decedent, and defendants claim through a chancery sale of the lands for the payment of the debts of Aaron McCameron, deceased.

It was held in an early decision of this court, Root v. McFerrin, 37 Miss. 17, that "upon the death of an intestate his realty descends to his heirs, and their title can only be divested by their own voluntary act, or by regular sale under the decree of a court of competent jurisdiction made in pursuance of law." Also, "that the power of the court of probates over realty is derived from legislative grant, and this grant is the donation of a special and limited jurisdiction, which can only be exercised in strict accordance with the conditions and limitations imposed by the legislature." That case held, further, "No presumption will be indulged in favor of the jurisdiction of a court of inferior, special, and limited jurisdiction; and in such cases all the jurisdictional facts must appear affirmatively in the record, or else the judgment will be void."

In this case it should have been made to appear affirmatively that all the heirs were served strictly in accordance with law, the minors being served as the law provides minors should be served; yet this nowhere appears to have been done. It does not appear, either, that the bond required to be given by an administrator for the faithful application of the proceeds of the sale of the land had been given as required by law before making the sale. This bond, according to the statute, shall be made before the sale. It may be made a minute, an hour, a day, a week, a month, perhaps, before sale, but according to the law it must be made before the sale.

The defendants attempted to show the giving of the bond required in two ways: First, by a recital in the decree of confirmation as follows, "And it appearing to the satisfaction of the court that the sale was made, conducted, and concluded strictly in accordance with the forms and requirements of law, and the decree of this court ;" and, second, by the testimony of Herron, the administrator, that he made the bond "about the time of the sale, or a few minutes after it was made." Yet he cannot say that it was ever filed, nor can he say who his sureties were, nor the penalty of the bond. This proof was admitted without any showing that the bond was lost, over the objections of the plaintiffs.

The giving of the bond has in all cases passed on by this court been held to be essential to the validity of the sale. 27 Miss. 52; 26 Miss. 646; 34 Miss. 179; 34 Miss. 304; 41 Miss. 460; 44 Miss. 591.

From the decisions of this court it is plain that if there was a failure of service on the heirs or a failure of the administrator to give the required bond before the sale, the title of the defendants is void, and we insist that an inspection of the whole record fails to show such compliance with the statute in such cases as is required to divest the title of the heirs. As to recitals in a decree, we call special attention of the court to 44 Miss. 235, where it is held that recitals must be controlled by the other parts of the record; that the whole record must be examined, and if it does not support the recitals of the decree, the recitals are not binding. 57 Miss. 183; 76 Miss. 317.

The sale was void because the land was not sold in subdivisions as required by Constitution 1869, art. 12, sec. 18.

In response to the suggestion of appellants' counsel, that Code 1880, § 2693, debars plaintiffs from recovery because more than two years had elapsed since the chancery sale, we say this applies only when the sale was in good faith and the purchase money paid. In this case Herron, the administrator, sold the land to pay a debt due to his firm, and, through Rowland, purchased at his own sale.

Mayes & Longstreet, for appellees.

There is nothing in the record which affirmatively shows that citation was not properly served. The record simply fails to include a summons. There is, however, an answer filed by the widow, in which the making of the sale was opposed.

The decree of sale, however, contains the following recital: "And it appearing to the satisfaction of the court that summons has been issued and duly served on all persons interested in said estate," etc.

That such recital is conclusive in an action of ejectment is well settled in this state. Cocks v. Simmons, 57 Miss. 183, 195; Silvey v. Summers, 57 Miss. 730, 731; Yerger v. Ferguson, 55 Miss. 196, 197; Root v. McFerrin, 37 Miss. 46, 47, 48; Dogan v. Brown, 44 Miss. 235; Lester v. Miller 76 Miss. 317; Grego v. Grego, 78 Miss. 444, 445.

The second objection to defendants' title was based on the alleged fact that under the decree of sale the administrator gave no bond. To put it more precisely, the objection is that no administrator's bond can be found among the papers. The court will observe that the chancery record which was offered in evidence was made up of loose papers, and that this sale took place in 1882, which is twenty-two years ago.

The fact that the administrator's special bond is not found now among these papers is of but little consequence in the attitude occupied by the record, for the transcript shows the decree of confirmation, and in that decree of confirmation appears the following recital: "And it appearing to the satisfaction of the court that said sale was made, conducted, and concluded strictly in accordance with the forms and requirements of law and the decree of this court, and that report thereof is in due and proper form, it is considered by the court," etc.

The foregoing decree is sufficient, therefore, because of that recital, under the authorities cited above, even in the absence from the file of the administrator's bond. Especially is that true when it was not only the law which required the bond to be given, but there was also an express provision in the decree of sale that such bond should be given, and the decree of confirmation recites, as shown above, that the sale was made in strict conformity with that decree.

There is still another and distinct answer to this proposition that the files do not include now--an administrator's special bond. Suppose it were true that the administrator never had given a bond and that no such recital was contained in the decree of confirmation, the case would then fall under the provision of Code 1880, § 2693, which declares that no action shall be brought to recover any property thereafter sold by order of the chancery court where the sale is in good faith and the purchase money paid, unless brought within two years after the possession taken by the purchaser under such sale. See cases cited under Code 1892, § 2760.

As a matter of fact, the administrator did give the bond, and it is proven by his uncontradicted testimony.

It may be argued, however, that the evidence in this ease shows that the administrator bought at his own sale, and, therefore, that the sale cannot be said to have been made in good faith as required by Code 1880, § 2693. Exactly what the evidence does show is this: The McCameron debt consisted of a note due to Bryant & Herron in 1877. F. B. Herron, the administrator, was a member of this firm. One W. C. Rowland was the bookkeeper of the firm, and Mr. Herron, the administrator, informed Mr. Rowland that he could not buy the land as administrator, but that he wanted Rowland to buy the land to pay the indebtedness, and that he, Herron, would afterwards take the land off of Rowland's hands if he did not want it or could not sell it.

With that understanding Rowland bought the land at $ 200 in order to protect the Bryant & Herron debt, and he kept charge of the place, paying taxes on it, etc. (although it did not yield him any rents because the widow was occupying the same as dower), until he, Rowland, sold it to Frank Herron.

Now, Rowland's deed to Frank Herron was executed on the 28th day of September, 1891, which was nine years after he bought it.

The record is a little obscure on one point here, but it indicates that Francis B. Herron and the Frank Herron to whom Rowland's deed was executed were not the same, but were different individuals. F. B. Herron, on cross-examination, speaks of Rowland's having sold "to Frank Herron."

As the administrator's arrangement with Rowland was that Rowland should buy to protect the firm, and it was further that he would take the land off of Rowland's hands in the event that Rowland did not want it and could not sell it to anybody else, and since Rowland did keep the land nine years and then sold for nearly double the money to Frank Herron, who at the time of the purchase by him seems not to have been in any wise connected with the McCameron estate or with the firm of Bryant & Herron or with the administrator, it cannot be said that it was a purchase by the administrator.

But suppose the land had been purchased by the administrator then still the record shows that it was afterwards, in the year 1896, sold by a commissioner in chancery, as property of F. B. Herron & Co., to Armstrong, Bryant & Bondurant, and that Edwin Newburger, the landlord and ...