Vansant v. Dodds
| Decision Date | 05 December 1932 |
| Docket Number | 30257 |
| Citation | 164 Miss. 787,144 So. 688 |
| Court | Mississippi Supreme Court |
| Parties | VANSANT v. DODDS |
Suggestion Of Error Overruled January 16, 1933.
APPEAL from chancery court of Washington county, HON. J. L WILLIAMS, Chancellor.
Bill by Frances Vansant against B. W. Dodds. From a decree dismissing the bill, complainant appeals. Reversed and remanded.
ON SUGGESTION OF ERROR.
Suggestion of error overruled.
For original opinion, see 144 So. 688.
Reversed and remanded. Suggestion of error overruled.
Wynn & Hafter, of Greenville, for appellant.
Sales of land may be made on the first Monday of every month, or on the first Monday or Tuesday of a term of the circuit court of the county, and shall be advertised in a newspaper published in the county, once in each week for three successive weeks.
It is an evident fact, that in order to gain possession of real estate, there are three possible actions open to the plaintiff in the State of Mississippi; First, an action of ejectment; second, an action of unlawful entry and detainer third, an action under landlord and tenant section.
Section 2226 of the Mississippi Code of 1930.
Certainly, the suit filed in the justice of peace court in 1929 was not an ejectment suit.
If the suit filed in the justice court be considered a suit of unlawful entry and detainer, as governed by Section 3456 of the Mississippi Code of 1930, it could not have been decisive of the issue involved in this suit, for the definite reason that Section 3471 of the Mississippi Code of 1930 reads as follows: A judgment rendered in a suit of unlawful entry or detainer, either for the plaintiff or defendant, shall not bar any action in the circuit court between the same parties, respecting the same land; nor shall any judgment given therein be held conclusive of the facts found in any other action between the same parties.
If the suit filed in the justice of peace court in 1929 is not a suit in ejectment, and not a suit under the unlawful entry and detainer statute, we then say, under this form of action, the issues now involved were not adjudicated.
The only issue determined then was the right of possession, and that his title to the property was not in issue, and could not have been placed in issue.
It is a well recognized principle of law that a tenant in possession of land cannot dispute the landlord's title.
Wilson v. Peacock, 111 Miss. 115, 71 So. 297.
A sheriff's deed will not be canceled on the grounds that notice of sale was not published for the length of time required by law, where the purchaser and grantee are not judgment creditors, and had no knowledge of such regularity, but where a deed is made to a judgment creditor, equity will cancel it, for want of sufficient publication.
Quarles v. Heirn, 14 So. 23, 70 Miss. 891.
When public notice of sale of real estate at auction shall be published once each week for three weeks in the official paper, publication in each of three successive weeks is insufficient unless the first publication is twenty-one days before the sale.
City of Albany v. Goodman, 197 N.Y. 739, 203 A.D. 530.
The term "two consecutive weeks" as used in a statute requiring highway commissioners before letting a contract to advertise for two consecutive weeks, means two full calendar weeks.
State v. McMaster, 10 Ohio App. 361.
Percy Bell, of Greenville, for appellee.
The language of the statute, section 3037, Code of 1930, is not mandatory but permissive, as to the time of the sale.
This statute does not provide for the elapsing of three weeks between the first and last publication, and is differently worded from section 2972 of the same Code, which provides for a period of twenty-one days from the date of the first publication.
Jones v. Rogers, 85 Miss. 802, 38 So. 742.
The doctrine of res judicata, first definitely formulated in the Duchess of Kingston's case, embodies two main rules, which may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction upon the merits concludes the parties and prives to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal. (2) Any right, fact, or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose, or subject-matter of the two suits is the same or not. In an action upon the same claim or demand the former adjudication concludes parties and privies not only as to every matter offered and received to sustain or defeat the claim, but also as to every matter which might and should have been litigated in the first suit.
The doctrine of estoppel by judgment does not rest upon any superior authority of the court rendering the judgment; and a judgment of one court of competent jurisdiction is a bar to an action between the same parties for the same cause in another court of coordinant or concurrent jurisdiction. Subject to the limitations that the judgment in the former action must have been rendered by a court of competent jurisdiction, the adjudications which will operate as an estoppel may be rendered by justices of the peace and other inferior courts, probate court, courts of equity, courts of claims or boards and officers acting judicially.
A judgment on the merits rendered by an inferior court, such as that of a justice of the peace, is a bar to another suit between the same parties on the same cause of action, either in another court of the same grade or rank or in any other court, unless the court rendering such judgment was without jurisdiction of the action.
Where the right, title, or ownership of real or personal property is directly put in issue, whether by the pleadings or the course of the litigation and is tried and determined, or by necessary implication must have been determined in order to warrant or justify the judgment rendered by the court, the judgment is conclusive therein in all further litigation between the same parties or their privies, whatever may have been the nature or purpose of the action in which the judgment was rendered or of that in which the estoppel is set up; and in such case the judgment is as effectual as a release or confirmation by one party to the other; its estoppel constitutes a part of the title, and runs with the land, extending to all who are privies in estate to either of the parties.
At common law, where there were many forms of actions concerning real property, some involving the mere-possession, others the right of possession, and others the right of property, it was a general rule that a judgment in an action of inferior grade, while conclusive on the matters actually involved, was no bar to an action of a superior grade. But under modern systems the question of the title to land may be conclusively settled, like any other question by its actual trial and adjudication, without regard to the form or nature of the action in which it arises, provided only that it was actually and fairly at issue in the former suit, between the same parties, and that the adjudication was made by a court having jurisdiction of the subject-matter, and that the proceedings were legal and valid.
Where a suit is determined, it is an adjudication of all questions which might have been tried in it.
Lawson v. Shotwell, 27 Miss. 630; Stewart v. Stebbins, 30 Miss. 66.
If the defendant in an action of ejectment or in an action for mesne profits, fail, without sufficient excuse, to set up his claim for valuable improvements made by him on the premises, he cannot afterwards come into equity for relief on that account.
Moody v. Harper, 38 Miss. 599.
A party will not be permitted to re-litigate a matter once settled by merely presenting new arguments on the state of facts not materially different from those existing in the first suit.
Moody v. Harper, 38 Miss. 599.
A judgment between the same parties for the same cause of action is conclusive. The test is whether the same cause of action is litigated or adjudicated in the same suit; the form of action may be different, but the grievance complained of must be the same in both.
Where a court has jurisdiction of the subject-matter and the parties in interest, its judgment is not alone res adjudicata of the questions specifically presented by the pleadings, but is also res adjudicata of all questions necessarily involved and which could have been presented.
Bates v. Strickland, 139 Miss. 636, 103 So. 432; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Fisher v. Browning, 107 Miss. 729, 66 So. 132, Ann. Cas. 1917, 466; Dean v. Board of County Supr's, 135 Miss. 268, 99 So. 563.
Section 303, Code of 1930, does not provide that the publication shall be made for a period of three weeks but that it shall be published once in each week for three successive weeks. In other words, the statute does not call for a three-week period of publication, but for three publications which shall take place in three successive weeks. Had it meant a period, it would have been phrased as the other statutes are phrased.
Section 1398, Code of 1930, does not apply because the statute under which this publication was made does not provide that it shall be made for three weeks but specifically says once in each week for three successive weeks.
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