Hanks v. Neal

Peyton, C. J.: S. E. Neal and Elmira Neal, as executor and executrix of the last will and testament of Eobert Neal, sr., deceased, instituted suit on the 24th. day of March, 1866, in the circuit court of Carroll county, against Toliver Hanks, as administrator of the estate of M.’ Hanks, deceased, apd B. E. Eskridge, as executor of the last will and testament of E. Eskridge, deceased, on two writings obligatory for $2,880 each, executed by the said M. Hanks and E. Eskridge, in favor of the said Eobert Neal, on the 19th day of December, 1859, payable in one and two years from date. To this action the defendants appeared and pleaded the two following pleas : 1st. The defendants for plea deny the allegations of the plaintiffs’ declaration; 2d. And for further plea the defendants say that said writings obligatory were given for a sale of lands that belonged to Seaborn Jones, deceased; that said sale was made under an order of the probate court of Carroll county, Mississippi; that said sale was void, and that said notes or writings obligatory are void. To which they annexed a notice that on the trial they would introduce in evidence the record of said sale, orders and proceedings to show that said sale was void1st. Because process was not issued one month before the day set for sale ; 2d. Notice of said sale was not given as ordered by the court; 3d. The sale was not confirmed. The plaintiffs demurred to the second plea, and the demurrer was sustained by the court, and leave was granted to the — 221 — defendants to answer oyer to- the declaration, which they declined to do, and the cause was submitted on the first plea to the jury, who found a verdict for the plaintiffs for the sum of $8,938 40, whereupon the defendants moved the court for a new trial on the following grounds : 1st. Because the court erred in giving to the jury the instructions asked by the plaintiffs; 2d. Because the court refused to give the instructions asked by the defendants; 3d. Because the jury found contrary to law and evidence; which motion was overruled by the court, and judgment rendered on the verdict against the defendants, who bring the cause to this court by writ of error, and make the following assignments of error: 1st. The court erred in sustaining the demurrer of the defendants in error to the second plea of the plaintiffs in error. 2d. The court erred in refusing the instructions asked by the plaintiffs in error. 3d. The court erred in granting the instruction asked by the defendants in error. 4th. The court erred in overruling the motion of the plaintiffs in error for a new trial'. 5th. The court erred in not extending the demurrer back to the declaration and in not giving judgment thereon for the plaintiffs in error. The first and fifth assignments of error will be considered together. The first impeaches the correctness of the action of the court in sustaining the demurrer of the defendants in, error to the second plea of the plaintiffs in error. Pleadings should state facts and not legal conclusions. It is a statement, in legal form, of the facts' which constitute the plaintiff’s cause of action or the defendant’s ground of defense. When tested by this rule of pleading it will be seen that the plea is evidently bad, for the reason that the facts set forth therein constitute no defense to the action. The statements in the plea that the said sale was void, and that the said notes or writings obligatory are void, are mere legal deductions of the pleader, and unauthorized by the facts of the — 222 — plea. The court, therefore, did not err in sustaining the demurrer to it. But it is insisted that the declaration does not show title in the plaintiffs below to the writings obligatory sued on, and for that reason the demurrer ought to have been applied to the declaration. We do not think so. The guardian, Robert Neal, sr., t® whom the said writings obligatory were given, undoubtedly had the legal title to them, and has given bond with surety in pursuance of the order of the court, to collect and divide the proceeds of the sale of the land among the persons entitled thereto. It appears from the record that this cause went to trial upon the first plea without objection to it. But what issue in fact was presented by that plea for trial by the jury it is difficult to ascertain. If it meant to deny the execution of the writings obligatory, the plea was bad for want of verification under oath, or if it was intended to deny the legal efficacy of the writings obligatory sued on, on account of any facts existing at the time of their execution, those facts should have been set out in the plea, upon which an issue might have been taken and tried by the jury. The case, however, seems to have been fully presented to the jury upon all the facts pertaining to it by the consent of the parties, and thereby any legal objection which might have been taken to the plea is waived. This brings us to the consideration of the second assignment of error, which is based upon the refusal of the court to give the instructions asked by the plaintiffs in error. Those instructions, which are four in number, question the validity of the proceedings in the probate court and of the commissioner in effecting the sale of the land. And this makes it necessary to examine those proceedings and the action of the commissioner in the sale of the land. It appears that Robert Neal, as guardian of Emily Jones, a minor heir of Seaborn Jones, deceased, on the 6t.h day of September, 1859, filed his petition in the probate court of Carroll county, praying for a decree to sell the following described lands, to-wit: West half of north-west quarter, north — 223 — east quarter of- north-west quarter, north-west quarter of north-east quarter of section two; and east half, and east half of the west half of section three, in township twenty, range sis east, in said county of Carroll, for the purposes of division among the devisees of the said Seaborn Jones, deceased. The said petition states that said decedent, by his will, 'devised to the said minors, John M. Jones, Patrick H. Jones, Seaborn Jones, and Mary Jones, his widow, and Reuben Jones., for life, and after his death, to his children, all his real and personal estate, and that among his real estate, was the land above described ; that said land had never been divided, and is mostly in a plantation, which is getting out of order, and cannot be rented and kept for any fair interest on its value, and that it would be greatly to the interest of his ward to have her said undivided interest therein sold, which, would then bring a fair price ; the petition further states, that owing to the location of said land, it cannot be divided among the above mentioned owners, without great loss to them, and that it would be to the interest of the others, as well as of his ward, that the whole tract should be sold, and the proceeds divided among the owners according to their interest therein. Upon filing the petition, citations were issued by order of the court, to all the parties in interest, except the ward of the petitioner, returnable to the first Monday of October next, thereafter. It was admitted on the trial, that process was executed on Reuben Jones and his children, on the 13th day of September, 1859, and on all the other parties on the 17th day of that month ; the clerk of said court testified that the October term of said probate court failed. On the 8th day of November, 1859, Andrew M. Nelson was appointed by said court, guardian ad litem for R. M. Jones, Thomas Jones, Nancy J. Jones, and Benjamin Jones, infants, who answered said petition by their said guardian ; the adult defendants having failed to appear, the petition was taken for confessed as to them, and upon a final hearing, at the November term of said court, 1859, on the petition, the — 224 — decree pro confesso against the adult defendants, and the answer of said infants, R M. Jones, Thomas Jones, Nancy J. Jones, and Benjamin Jones, by Andrew M. Nelson, their guardian, and proofs, the court decreed the lands tó be sold on a credit of one and two years, and appointed Robert Neal, sr., commissioner, to execute the decree by selling the land, and making title to the purchaser upon his giving' bonds with good security for the purchase money. It is insisted that the decree is void, because the said de-visees, the only parties in interest, were summoned to appear at the October term, 1859, of said probate court, to show cause why a decree for the sale of the land should not be made as prayed for in the petition, and that the decree was not made until the November term next following, without having a day set for the hearing of 'the cause. It appears from the testimony of the clerk of said probate court, that the October term thereof, to which the citations were returnable, was, from some cause, not held, and that the first court held after the apjalication for an order to sell was made, was at the November term ; and iri consequence of the failure of the October term of said court, all suits and proceedings remaining therein undecided, stood continued, of course, until the next term; for it ■would be monstrous to hold that on account of a failure to hold the court at any regular term, the whole business of the court would be discontinued. It is made the duty of the parties to the suit or proceedings, who have been served with process, to attend the court according to the command of the process. Rev. Code, 429, art. 20. Because the service of process in this case, upon the co-devisees was not made in the formal manner required by the statute, it is not on that account void, but only erroneous, and cannot, therefore, be impeached collaterally. Campbell v. Hays, 41 Miss., 581. The service of process upon them made thém parties to the" suit, which, in consequence of the failure of the October term, was continued by operation of law, until the November term, when the 'decree of sale was made; being subjected to the jurisdiction of the court, by — 225 — the service of process upon them, it was their duty to have appeared on the day fixed by law for the commencement of the November term, and contested, had there been any grounds for doing so, the application for a decree of sale, and the failure to do so does not in any way vitiate the decree, which we regard as valid and binding upon all the parties and privies to the proceeding. It is very clear that this was an application by the guardian, under article 153 of the Revised Code, 464, for a decree to sell his ward’s interest in the land devised, or if, upon the final hearing of the cause, it should appear that the land cannot be conveniently divided among the devisees, then for a decree to sell the same for a division of the proceeds among the ward and her co-devisees. It is contended by counsel for the plaintiffs in error, that it was necessary to the validity of the proceedings in the probate court, that the petition of the guardian for a decree of sale of the lands should have been verified by oath ; that the court should have appointed a day for the hearing of the petition, and that at least three of the nearest relations of the minor, if there were any in the state, should have been summoned as required in article 151 of the Revised Code, 463. By reference to article 153, under which these proceedings were had, it will be seen that these things are not required as prerequisites to a valid decree of sale under this article, which provides that when lands, tenements or hereditaments, shall descend to or be devised to heirs or devisees jointly, one or more of whom are minors, and equal division thereof cannot conveniently be made, the guardian of such minor may petition the probate court of the county in which the letters were granted for an order to sell his ward’s share or interest in the land, and the court after summoning the heirs or devisees, may proceed to hear such application, and if it should deem it proper, may make a decree of sale of the ward’s interest as in other applications for the sale of real estate by guardians, and the sale and report thereof shall be — 226 — made in like manner, and subject to all the provisions of other sales made by guardians, or the court may order the whole of such real estate to be sold, and the proceeds to be divided among, and secured to, the persons entitled thereto. From this it will appear that it is the decree, sale and report thereof, that are required to be made as in other applications “for the sale of real estate by guardians. In the case at bar it appears that the petition for an.order to sell the land had been presented to the court more than, one month before the decree of sale was made, and-the. co-devisees were cited to appear at the probate court to show cause why the decree should not be made, for an equal length of time before the said decree was made. There was no necessity to cite the minor, who was represented by her guardian, who had no interest in the subject matter of the suit and proceedings in the probate court. And the failure of part of the devisees to appear at the term of the court' when the decree of sale was passed, does not, in our opinion, affect the validity of the decree. The validity of the sale of the land under this decree is assailed on the ground that the commissioner did not give the notice of the time, place, and terms of the sale required by the order of the probate court. It is assumed that unless the order is strictly pursued in this respect, the sale is void. This position cannot be maintained. It is believed to be well established law, that a sale by an officer is not affected by a failure to give the notice directed by the law. The irregularity of the officer in giving notice of the sale will not affect the title of the bona, fide purchaser at such sale. Property would never command its value when the purchaser’s title is to depend upon the regularity of the notices of sale. Minor v. the President and Selectmen of Natchez, 4 S. & M., 602; and Bland v. Muncaster, 24 Miss., 62. It is objected that the sale of only part of the land sold, was reported to and confirmed by the court, and in consequence of which the purchaser acquired no title to that part of the land sold, the sale of which was not reported to and confirmed by the court. This objection is founded on that — 227 — which, purports to be a copy of the report of sale of said lands, the original reports of the sale being lost. The petition, the decree of sale, and the deed made to the purchaser at the sale, agree in the description of the land, and the report of the sale, as set out in the copy in the record, states that the commissioner appointed by the court to sell the real estate of the late Seaborn Jones, containing 640 acres, did] after giving notice of the sale, sell said land, between the hours prescribed by law, to Marion Hanks, who was the highest and best bidder, at $9 per acre, on a credit of one and two years, the sale amounting to $5,760, for which he took bonds with approved security. The land described in the petition, decree of sale, and deed to the purchaser, contain 640 acres, agreeing in quantity with the above statement in the report of sale. And the order confirming the sale states that the report of the commissioner appointed to sell the real estate of Seaborn Jones, deceased, described in the decree, having been examined by the court, was confirmed. These concurring facts very clearly indicate that the discrepancy in the description of land in the writing purporting to be a copy of the report of sale, is amere clerical mistake in the copy, and that the entire tract of land described in the petition, decree of sale and deed, to the purchaser, was sold, and the sale thereof confirmed. And this conclusion is corroborated by the commissioner’s report, that he sold the real estate of Seaborn Jones, deceased, containing 640 acres (the quantity specified in the petition, decree and deed), to Marion Hanks, at $9 per acre, making the amount of the writings obligatory sued on in this action, and that was the only estate which was decreed to be sold by him. We, therefore, think that the court below did not err in refusing to give the instructions asked by the plaintiffs in error. The third and fourth assignments of error will be considered together, as the first of these is founded on giving the infraction asked by the defendant in error, and this is assigned as one of the grounds of the motion for a new trial. Although — 228 — this instruction as a legal proposition may not be correct, yet as the evidence shews that the verdict is right, there was no error in overruling the motion for a new trial. The rule is, that the Verdict will not be disturbed when it is according? to law and the justice of the case, though the instruction be erroneous. It is contended that it is not alleged in the petition for the order of sale, that the land could not conveniently be divided' among the devisees, and that this fact should have been alleged in order to give the court jurisdiction of the case. We think it is sufficient, if it appear from the allegations in the petition, that it could not be conviently divided among the owners. The petition avers that the land cannot be divided among the onwers thereof without great loss to them, and that it would be to the- interest of the minor and her co-devisees, that the whole tract should be sold' and the proceeds divided among owners, according to their interest therein. This is deemed a substantial compliance with the statute, and is equivalent to the allegation that the land cannot conviently be divided. It is objected by counsel for the plaintiffs in error, that the article 153 of the Revised Qode, under which the decree 6f sale Was made, is unconstitutional so far as it authorizes the probate court to decree a sale of the real estate of adult persons. This position is not tenable. It is the exercise of a power conferred by statute, like that given to the probate court to decree the sale of real estate of devisees and heirs by the executors and administrators, for the payment of the debts of the decedent. The probate court as to the jurisdiction conferred by the constitution, is a court of original jurisdiction. The power of that court over realty is derived from legislative grant, and is a donation of special and limited jurisdiction. The term's, “ all matters testamentary and of administration,” as used in the constitution, embrace only matters which concern that property, which is the subject of administration by executors and administrators, and which vested in the personal representative. The real estate does — 229 — aiot vest in the personal representative, and is not the subject, therefore, of administration at common law, but descends upon the heirs of deceased, or goes to the devisee. Hence, it is held that the power to deal with it is conferred by statute,-and not by the constitution. Root v. McFerrin, 37 Miss., 17. We think that the provision of the statute uade-r consideration is not liable to the objection raised to it, and was within the legitimate exercise of legislative power. The judgment of the court below is affirmed.