Whitley v. Towle

• Decision Date: 09 May 1932
• Docket Number: 29921
• Citation: 141 So. 571,163 Miss. 418
• Court: Mississippi Supreme Court
• Parties: WHITLEY v. TOWLE

141 So. 571

163 Miss. 418

WHITLEY v. TOWLE

No. 29921

Supreme Court of Mississippi, Division B

May 9, 1932

(Division B.)

1. EXECUTORS AND ADMINISTRATORS. Petition for sale of decedent's lands in W. county to pay debts may be heard by chancellor in S. county within same chancery district (Code 1930, sections 322, 1691, 1694, 1695).

Administrator of estate filed petition for sale of lands of decedent to pay debts of the estate in Washington county, where the estate was being administered and where the lands were situated. Summons directed parties to appear before the chancellor in vacation in named city in Sunflower county, but in the same chancery district.

2. EXECUTORS AND ADMINISTRATORS.

General practice is to make petitions in estate matters returnable before chancellor at place of residence, if court is not scheduled elsewhere.

3. EXECUTORS AND ADMINISTRATORS.

Where petition in estate matter is desired to be heard when chancellor is scheduled in some other county within same chancery district, usual course is to have chancellor set place and date.

4. EXECUTORS AND ADMINISTRATORS.

Where chancellor is present at time and place in district specified in summons, and proceeds to hearing, chancellor's action is equivalent to previous designation of time and place specified in summons.

5 JUDGMENT.

In collateral attack on decree, jurisdictional facts are conclusively presumed to have existed, unless record affirmatively shows contrary.

6 JUDGMENT.

Fact that return of service of process is missing from record held insufficient to warrant setting aside decree on collateral attack.

7. EXECUTORS AND ADMINISTRATORS.

Widow through failure to appear and assert homestead rights in answer to petition to sell deceased husband's lands waived homestead claim.

HON. S F. DAVIS, Judge.

APPEAL from the circuit court of Washington county, HON. S. F. DAVIS, Judge.

Action by Harry Towle against Abbie Whitley. Judgment for the plaintiff, and the defendant appeals. Affirmed.

Affirmed.

Wynn & Hafter, of Greenville, for appellant.

It has been held with unvarying uniformity as well as unanimity, that a decree by the probate court, and sale of the land of a decedent without the citation and notice required by the statute, appearing either by positive evidence or recital in the record, is void. Not only as against its express provisions, but because it stands opposed to the universal principle of law and common justice, that no man can be deprived of his rights or concluded in any manner by the judgment of a court, without notice of the proceedings against him, either actual or constructive.

Root v. McFerrin, 37 Miss. 17.

It is a familiar principle, that a judgment is conclusive upon parties and privies, when the court has jurisdiction to render it. Unless such jurisdiction exists, the judgment is a nullity, and may be impeached collaterally. The jurisdiction must extend to the parties, as well as the subject-matter.

Root v. McFerrin, 37 Miss. 17.

If the appellant had been properly and legally served with summons, and had been duly and legally made a party to the proceeding to dispose of the land, even under this circumstance, she would not be estopped from asserting her homestead right in the property. The right of homestead was a right that is set apart to the widow by statute, as a matter of law; and, if the estate had any interest in the real estate formerly owned by J. H. Whitley in his lifetime, it was the fee simple title to said property for an amount over and above the homestead claim of the appellant. The petition, as filed, did not include a prayer to sell the property in its entirety, including the homestead right, but only asks that the interest of the estate in said real estate be sold.

The decree does not decide that five days' personal service had been had.

Sections 2969, 3052, Code of 1930.

The summons is ineffectual because the clerk of the court of Washington county, Mississippi, did not have the power and authority to issue a summons requiring the defendant to appear before the court held in Sunflower county, Mississippi, and that the decree rendered thereon was a nullity.

The venue is fixed in Washington county, Mississippi, and not in Sunflower county, Mississippi, of a petition to sell property located at Washington county, Mississippi, and owned by an estate being administered in Washington county, Mississippi and the appellant being a citizen and resident of Washington county, Mississippi.

Section 363, Code of 1930.

No matter whether the court be one of original and general, or of special and limited jurisdiction, it must appear, in either case, on the face of the record, that it had jurisdiction by the Constitution or laws of the land, both of the parties and the subject-matter, before it can deprive the citizen of his rights or property by its judgments.

Root v. McFerrin, 37 Miss. 17.

E. J. Bogen, of Greenville, for appellee.

The summons was a substantial compliance with the statutes.

Sections 2964 and 2965, Code of 1930.

The order of the chancellor for the sale of the land in question, setting out that the necessary service upon all parties had been had, is a sufficient recital in the record for a valid sale.

The appellant lost her right to claim homestead exemption by not asserting it in the chancery suit.

Miller v. Sherry, 2 Wall. 237; Henderson v. Still, 61 Miss. 391.

Where decree of court necessarily passes on a claim of homestead exemption, the decree cannot be questioned collaterally.

New Mexico Nat. Bank v. Brooks, 49 P. 949; Plant v. Carpenter, 19 Wash. 626, 53 P. 1109; Graham v. Culver, 3 Wyo. 655, 31 Am. St. Rep. 120, 29 P. 276.

The exemption of wages is a benefit of which the debtor may, if he please avail himself; but he can if he desires, voluntarily waive his legal right, and will do so, by operation of law, by failure to contest the garnishment.

Sturges v. Jackson, 88 Miss. 508, 6 L.R.A. (N.S.) 491.

A homestead claim must be set up before sale of the property and such claim is waived if no exemption is claimed.

Stanley v. Ehrman, 83 Ala. 215, 3 So. 527; Lackland v. Rogers, 113 Ala. 529, 23 So. 489; Rodgers v. Lackland, 117 Ala. 599, 23 So. 489; Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 93 So. 904; Cunningham v. Steidman, 133 La. 44, 62 So. 346.

A debtor may waive his statutory privilege of homestead exemption from execution.

13 R. C. L. 656; Bowman v. Smiley, 31 Pa. St. 255, 72 Am. Dec. 738.

Prior to an election and selection by the owner, however, a homestead may be waived by failure to make such election and selection before sale by the sheriff.

13 R. C. L. 656; Riggs v. Sterling, 27 N.W. 705.

While there is some authority denying the right of a debtor to waive an exemption created in favor of the head of a family, the weight of authority favors the rule that an exemption is a mere privilege which a debtor may waive.

11 R. C. L., sec. 55, p. 539; Brown v. Letich, 60 Ala. 313, 31 Am. Rep. 42; Dowling & Allgood v. Wood, 125 Ia. 244, 101 N.W. 113; Sturges v. Jackson, 88 Miss. 508, 40 So. 547; Bowman v. Smiley, 31 Pa. St. 225, 72 Am. Dec. 738.

Where a claim of homestead exemption has been adjudicated adversely to the defendant in an action to foreclose a mortgage upon the premises, it cannot be again interposed as a defense to an action for the possession brought by the purchaser under the foreclosure judgment. This adjudication until reversed or annulled by some direct proceeding for that purpose, is, wherever brought collaterally in question, conclusive of the matters therein adjudicated.

13 R. C. L., sec. 154, p. 695; Larson v. Reynolds, 13 Ia. 579, 81 Am. Dec. 444; Lee v. Kingsburg, 13 Tex. 68, 62 Am. Dec. 546; Tadlock v. Eccles, 20 Tex. 782, 73 Am. Dec. 213.

Where there was a sale of property by an administrator the report being in all things confirmed, any irregularity in the sale on account of the place where it was made was cured by the action of the court in adopting the selection which the administrators had made, and which thereby became as effectual to pass title as if selected by the court in the first instance and a decree confirming the sale, adjudging that it was made in confirmity with the decree, together with a recital in the deed to the purchaser that the purchase money had been paid and a charge therewith against the administrator in his accourts, sufficiently prove the payment, is a collateral attack on the sale predicated on its alleged nonpayment.

Ladd v. Craig, 94 Miss. 659.

In the absence of fraud the judgment or decree of a court of competent jurisdiction cannot be collaterally impeached, as by seeking to wrest from a purchaser the fruits of such judgment, but the decree or judgment must be directly attacked as if by appeal, bill of review, or other proceeding, which has for its special object the annulment of the judgment...