Weaver v. Norwood

• Decision Date: 10 May 1882
• Citation: 59 Miss. 665
• Court: Mississippi Supreme Court
• Parties: ELLEN WEAVER v. A. E. NORWOOD et al

59 Miss. 665

ELLEN WEAVER v. A. E. NORWOOD et al

Supreme Court of Mississippi

May 10, 1882

Appeal from the Chancery Court of Clay County, Hon. F. A. Critz Chancellor, did not preside in this case, but W. L. Clayton acted as Chancellor pro hac vice.

Decree affirmed.

Houston & Reynolds, for the appellant.

1. The purchaser's right to charge the land with the sum paid is well settled independently of statute. Ragland v Green, 14 S. & M. 194; Cook v. Toumbs, 36 Miss 685; Jayne v. Boisgerard, 39 Miss. 796; Short v Porter, 44 Miss. 533; Wilie v. Brooks, 45 Miss 542; Douglas v. Bennett, 51 Miss. 680; Handy v. Noonan, 51 Miss. 166; Cole v. Johnson, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103; Hill v. Billingsly, 53 Miss. 111; Evans v. Robertson, 54 Miss. 683; McGee v. Wallis, 57 Miss. 638; Sivley v. Summers, 57 Miss. 712; Callicott v. Parks, 58 Miss. 528. This right exists in favor of a fraudulent purchaser. Butler v. O'Brien, 5 Ala. 316; In re Wilson, 4 Penn. St. 430; Lee v. Hunter, 1 Paige, 519. An executor de son tort is entitled to reimbursement, and a purchaser from him stands in his shoes. Hill v. Henderson, 13 S. & M. 688. Courts of equity will reimburse fraudulent purchasers for disbursements made by them for the benefit of the actual owners of the property, when it effects substantial justice. Kennedy v. Kennedy, 2 Ala. 571; Abney v. Kingsland, 10 Ala. 355; Bank of Mobile v. Harris, 6 La. Ann. 811; How v. Camp, Walker (Mich.) 427; Boyd v. Dunlap, 1 Johns. Ch. 478; McLaughlin v. Daniel, 8 Dana, 182. A purchase by an administrator at his own sale is not void, though not in good faith. It is voidable at the election of the heirs, and if avoided by them they must refund whatever of benefit the purchase has been to the estate. If the administrator has paid debts or satisfied liens, or purchased the property to pay his own debts, the property will be charged therewith. Summers v. Brady, 56 Miss. 10; 2 Williams on Executors, 1005, note b. In Sivley v. Summers, 57 Miss. 712, this court remanded the case to enable the mala fide purchaser to fasten upon it his charge. The equity of a purchaser in good faith is independent. He may assert it in a suit where he is the actor. Gaines v. Kennedy, ubi supra; Hill v. Billingsly, ubi supra. Why cannot a mala fide purchaser assert the equity in the same way? If the heirs commence their action of ejectment to recover the property, the purchaser, without the Code of 1880, cannot make defence of his charge upon the property by paying debts against the estate, but must file a bill to enjoin.

2. The provision of Code 1880, § 2052, which authorizes this defence to be made in the action of ejectment, did not apply to this suit, which was at issue when the Code went into effect. The section by its terms applies to future sales, and by § 4 the provisions of the Code are inapplicable to pending suits. But this statute provides only that the defence may be made at law, and, therefore, the remedy remains in equity. Lorraine v. Long, 6 Cal. 452; Hough v. Waters, 30 Cal. 309; Dorsey v. Reese, 14 B. Mon. 157; Freeman on Judgments, § 281. In fact, the defence was not made at law, and it was not one which would defeat the recovery. Under such circumstances judgment in the prior action operates as an estoppel only as to those matters in issue and points controverted, and not upon those which might have been presented and were not. Comwell v. County of Sac, 94 U.S. 351, 352; 6 Wait's Actions and Defences, 768; Hubbard v. Flynt, 58 Miss. 266. Judge Campbell, in the case last cited, says: "The matter of this bill was not adjudicated in the former suit. It was not presented by the pleadings, and, therefore, could not have been adjudicated. The mere fact that it might have been introduced into the suit if the complainant had chosen so to do, does not make such matter res judicata." A plaintiff may by taking a nonsuit reserve his claim for another trial. If a defendant who has a counter claim and the election to present it as a defence, or to bring an original suit, is not permitted to withdraw his claim and to bring it forward in another suit, then the contest between himself and the plaintiff is an unequal one, and he would be refused a privilege of which a plaintiff can make important use. 1 Wharton Evid. §§ 789, 790.

R O. Reynolds, on the same side, made an oral argument.

Fred Beall, for the appellees, argued orally and in writing.

1. The Probate Court of Lowndes County had no jurisdiction of the estate of Joel Evans, and there has consequently been no administration on this estate, no claims established against it, but the proceeding is totally void. The case is just as if Weaver had taken possession of the land and appropriated it without any judicial proceeding to the use of his wife, and credited the deceased debtor with so much upon the alleged debt. Land can be sold for the debts of its deceased owner in the mode prescribed by the statute, and in no other way. Cason v. Cason, 31 Miss. 578; Root v. McFerrin, 37 Miss. 17. Weaver was the real purchaser and he paid nothing. This administrator cannot, by means of his confederate, take the land at its supposed value. Bright v. Boyd, 1 Story, 478; Green v. Biddle, 8 Wheat. 1; Pilling v. Armitage, 12 Ves. 78, 85; McGee v. Wallis, 57 Miss. 638. If subrogated to anything, it is to the rights of general creditors, who are not entitled to an injunction or a receiver and cannot maintain a bill like this.

2. No right existed in Mrs. Weaver when this bill was filed which she can thus successfully assert. She has not shown valid claims against the estate, or that money which she paid for the land was used in their discharge. And if she had, her right of subrogation would be barred, for the reason that the statute began to run when the money was applied to the payment of debts. Stanwood v. Clampitt, 23 Miss. 372; Short v. Porter, 44 Miss. 533; Marshall v. Hudson, 9 Yerger, 57; Maxey v. Carter, 10 Yerger, 521. And, further, the Chancery Court has no jurisdiction of these matters, which, under Code 1880, § 2052, should have been settled in the ejectment suit. That judgment is conclusive against the right to maintain this bill.

R. Davis, on the same side.

1. Neither Devan nor Mrs. Weaver paid any money for the land. To whose rights then shall she be substituted? She has discharged no lien or claim against the estate of Joel Evans. Subrogation applies only where one pays a debt which is a charge upon specific property. An intestate's land is not liable for his debts until the personalty has been exhausted. As the decree is void, the estate has never been declared deficient in personal property. The pretended claim of Weaver against the estate on which the price bid for the land at the void sale was credited, is a fraudulent claim. But if this claim was valid, the charge would be upon the personalty, which must be proved to have been exhausted before the land can be sold. In order to create the charge attempted to be enforced in this bill, the money must be proved to have been actually and in good faith paid and applied to subsisting debts against the estate; and no such proof has been made. Short v. Porter, 44 Miss. 533; Sivley v. Summers, 57 Miss. 712.

2. The probate proceeding was void, and even if it had been valid the decree of insolvency was void, and the sale was void for want of a bond. In the heirs the title to the land is vested. It is unaffected by these void proceedings. They are entitled to the possession of the land, and no court can deprive them of the fruits of their recovery in ejectment by injunction or the appointment of a receiver. If the appellant has paid a creditor of the estate, she can be subrogated at most only to his rights, which are to exhaust the personalty in the legal mode and then proceed upon the probate side of the Chancery Court against the land. But a bill in Chancery to deprive the heirs of the land, or to appoint a receiver in the first instance, cannot be maintained by a general creditor of the estate.

3. By the result in the action of ejectment the matters sought to be now litigated are res adjudicata. There the appellant pleaded the one year's statute of limitations, which put in issue the questions whether the purchase-money was paid in good faith and applied to valid debts, and the verdict settled these questions in the negative. Packet Co. v. Sickles, 5 Wall. 580; Wells on Res Adjudicata, §§ 3, 4. This bill cannot be maintained without deciding the same questions of fact contrary to the verdict of the jury. The subject-matter and the parties are identical in the two suits, and the questions for determination are precisely the same. Under Acts of 1873, p. 41, as by the previous law, the payment in good faith and discharge of valid debts were essential to sustain a bill like this. Cole v. Johnson, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103; Hill v. Billingsly, 53 Miss. 111. But under Code 1880, § 2052, which became operative before the ejectment trial, the precise thing here demanded was made a matter of defense and directed to be tried in the lawsuit.

4. No denial is seriously made that the appellant is a purchaser mala fide. This fact is settled by the ejectment suit, and is proved by evidence apart from the record of that proceeding. The equity of subrogation cannot be asserted by a mala fide purchaser by means of an independent bill in equity. A complainant can come into equity only with clean hands. The rule that he who seeks equity must do equitably applies against the complainant, and it cannot be used against defendants. No case can be found in any State or nation where a court of chancery has allowed the use of its powers to enforce contracts founded in fraud, or rights arising out of such contract. Chancery Co...