Theobald v. Deslonde

• Decision Date: 15 June 1908
• Docket Number: 13,378
• Citation: 93 Miss. 208,46 So. 712
• Court: Mississippi Supreme Court
• Parties: CATO F. THEOBALD ET AL v. ANDRE DESLONDE ET AL

46 So. 712

93 Miss. 208

CATO F. THEOBALD ET AL v. ANDRE DESLONDE ET AL

No. 13,378

Supreme Court of Mississippi

June 15, 1908

FROM the chancery court, of Harrison county, HON. THADDEUS A WOOD, Chancellor.

Deslonde and others, appellees, were complainants in the court below Theobald and another, appellants, were defendants there. From a decree overruling their demurrer to the complainants' bill the defendants appealed to the supreme court.

The appellees, the three children of Mrs. Belle Deslonde, alleged in their bill that in 1890, by the will of their deceased grandmother, a life estate in certain land in section 35 of a designated township and range in Harrison county was devised to their mother for her life, with remainder therein to themselves in fee; that in 1901 their mother, who was at the time their legally appointed guardian, filed a petition in the chancery court for the sale of the land, erroneously describing it as being in section 3 of the same township and range, averring that a sale of the land was to the interests of the children, the appellees, as the rents and profits of the land were insufficient for the maintenance and education. The prayer of the petition was as follows: "that citation issue as directed by law and also to A. M. Dahlgren as provided by Code 1892, § 2205, he being the only next of kin residing in said state, and that the said land be sold as may be directed by this court." Citation was issued and summons served upon A. M. Dahlgren, he being a cousin of the petitioner, and she afterwards married him. He prepared the petition and there was no service of summons upon any other near relatives of the wards, nor upon any of the wards themselves. When the petition for the sale was filed, one of the wards, appellee Andre Deslonde, was absent, being in the United States navy and another of the appellees was self supporting, and a sale of the land was unnecessary for the support and maintenance of the wards. The description of the land in the petition and in the decree of sale was erroneous in designating it as in section 3, when it was in section 35 and, although further described as being a tract commencing at the southwest corner of a lot owned by one Morgan facing the Gulf of Mexico, and being the land described in a certain deed book on a certain page, yet, as Morgan owned several lots facing on the Gulf of Mexico, and as the designated volume and page of the deed book disclosed no such description, the land could not be identified. The bill charged that the defendants claimed title to land in question under the sale decreed upon the aforesaid petition, and that as against complainants it was invalid, and prayed that the claims of defendants to the land be cancelled as a cloud upon complainants' title.

On the hearing of the demurrer it was agreed of record that the appellants were bona fide purchasers for value, and, except as to matters apparent of record in the county, they had no knowledge of the facto set up in the bill.

Affirmed.

Harper & Harper, for apellants.

It was not obligatory on the appellants, in examining the title before purchasing, to look back further than the decree ordering sale of the land. It is not for a purchaser to determine whether the court was mistaken where it had jurisdiction of the matter, and no appeal therefrom was prosecuted. The decree of sale could be reversible only on direct appeal therefrom, and not collaterally in another and subsequent suit. Thompson v. Tolmie, 2 Peters 167, 7 L.Ed. 385; McNitt v. Turner, 16 Wall. 352, 21 L.Ed. 345; United States v. Arrendondo, 6 Peters 691, 8 L.Ed. 554.

It is a universal principle that, where prover or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject matter; and individual rights will not be disturbed collaterally because of anything done in the exercise of such discretion within the authority conferred. As the appellants were innocent purchasers for value, they must be protected as against the appellees' collateral attack on the decree whereby the land was sold. Nash v. Williams, 20 Wall. 226, 25 L.Ed. 259; Voorhees v. Jackson, 10 Peters 450; Mohr v. Manierre, 101 U.S. 426; Thaw v. Falls, 136 U.S. 519; Colorado, etc., Co. v. United States, 123 U.S. 307; United States v. California, etc., Land Co., v. United States, 148 U.S. 31. See also Price v. Martin, 46 Miss. 499; Fitzpatrick v. Beall, 62 Miss. 249.

The facts set forth in the petition for sale reasonably showed that a sale of the land was absolutely necessary for the support and education of the wards, and that they had no income, from the land, and the petition was sworn to; and this constituted all necessary under the statute law to give authority to the court to order a sale. See Code 1892, § 1297.

As regards the contention that the land in controversy was not sold, since there was a misdescription in the government section, we call the court's attention to its being also and more particularly described as being situated near the property of one Morgan and also as "being a part of the land conveyed by Tyler to Hollingsworth by deed dated August 25, 1873, recorded in said county in deed book No. 8, page 217." This latter description remedied the matter. Bowers v. Andrews, 52 Miss. 597; Tucker v. Field, 51 Miss. 194.

Ford, White & Ford, for appellees.

The petition for sale of the appellees' land was filed under Code 1892, § 2205, and not under Code 1892, § 2197. The petition does not rcite that "the personal estate and the rents and profits of the real estate are not sufficient for the maintenance and education of the ward," as required by Code 1892, § 2197, and hence the case of Fitzgerald v. Beall, 62 Miss. 244, is not applicable. It will be noted that the petition for sale closed with the prayer that Dahlgren, as the next of kin, should be cited as required by Code 1892, § 2205.

While it is true that the allegations of the petition very nearly met the requirements of Code 1892, § 2197, they did not come entirely within its requirements, at least in so far as two of the appellees were concerned, for the reason that although they were minors yet they were self-supporting, Andre Deslonde in fact assisting in the support of his mother and minor sister by remittances while absent from his home. But, even if all of the requirements of Code 1892, § 2197, had been met, so far as the allegations of the petition were concerned there could be no authority for authorizing the joint sale of land owned jointly by several wards for their joint support, but instead the necessity for the sale of the interest of each ward for such ward's support must be shown.

Code 1892, § 2205, provides that...