Sivley v. Summers

Campbell, J., delivered the opinion of the court. At the time of the appointment of Rawley Sivley, administrator de bonis non cum testamento annezo of G. W. Summers, deceased, all the claims against said decedent were barred by Code 1871 § 2155 continued in force from the Code of 1857, except the claim of R. S. Drone, evidenced by the promissory note of the testator, due and payable Jan. 1, 1865. It was not barred, because it matured after the death of the testator and maker, and, therefore, was not a cause of action against him, and, according to repeated decisions, is not affected by the statute cited. Bingaman v. Robertson, 25 Miss. 501; Pope v. Bowman, 27 Miss. 194; French v. Davis, 38 Miss. 218 ; Buckingham v. Walker, 48 Miss. 609. The other claims against the testator matured in his lifetime, and were subject to the operation of the section of the Code cited. We begin the computation of time on April 2, 1867, and add nine months, during which a suit could not be brought against the executors, and the result is as stated. The four years’ bar was independent of publication by the executors of notice to creditors to present their claims. That publication is important only with reference to the requirement to present and register claims against the decedent. The four years’ statute cited, and the general Statute of Limitations, run without regard to publication by the executor or administrator of notice to creditors. Whether that publication is made or not has no effect on any statute, except that which requires claims to be presented and registered within a prescribed time. The decree for the sale of the land of G. W. Summers, which this bill seeks to vacate, was made on the application of Rawley Sivley, as administrator de bonis non cum testamento annezo to pay debts of the decedent, all of which, except one, were barred by the Statute of Limitations. We have heretofore held that the sale of the land, and the purchase by Drone, were voidable, and we remanded the case for Sivley and Drone to propound their claim to be substituted to the rights of creditors as to the land. We left it an open question, whether it could be shown that the claims against the estate were barred. We have now to meet that question, and we answer it in the affirmative. [730] This is a bill seeking relief against a former decree of the court in which it is exhibited, which was obtained by what the law regards as fraud and imposition, even though the action of the party obtaining it was ever so honest in fact. “ A decree obtained without making those persons parties to the suit in which it is had, whose rights are affected thereby, is fraudulent and void as to those parties.” Story Eq. Pl. § 427. Mrs. Osburn and Mrs. Bealmaer were not legally made parties to the suit. The infant defendants are entitled to impeach the decree, because it is improper, although it was not obtained by fraud or surprise, independently of the question of whether they were parties to the suit or not. Story Eq. PL § 427. The parties against whom relief is sought are not Iona fide purchasers under the decree, but are the administrator who procured it, and his confederate in the purchase of the land at the sale which we have heretofore pronounced voidable at the election of the complainants in this bill. This is an application by original bill to the court which granted the decree for relief against that decree, and the rights of no innocent person are involved. The recitals in the decree for the sale of the land, as to service of process and proof of publication, are prima facie true. In this proceeding they are not conclusive. In a collateral proceeding these recitals would be conclusive, because, in such case, they could not be shown to be untrue, except by the record. Not being liable to attack in a collateral proceeding, their prima facie character would amount to conclusiveness, but in this proceeding the recitals of the decree may be contradicted, and, if shown to be untrue, the decree resting upon them for its validity should be opened. It is not to be tolerated, that, because the record may show the concurrence of those facts essential to give the court jurisdiction of a party, he may not, in a proper proceeding in the same court, and against the other parties, show its falsity. It is not to be assumed that a record is false, and yet it may be, and sometimes is, and when shown to be so in a proper proceeding, and between proper parties, the truth must prevail, though the record falls. If, in its fall, no one is harmed, except the one who procured a false record to be made, or those in his shoes [731] with notice, no wrong is done, and right prevails. We acted on this doctrine in Crawford v. Redus, 64 Miss. 700, which is said by counsel to be at variance with all the previous decisions of this court on this subject. We do not agree with counsel as to former adjudications. As we understand them, they announce the correct doctrines to which we steadfastly adhere, that every presumption is to be indulged in favor of the record of a court of general jurisdiction, and that it cannot be controverted in a collateral proceeding. Want of jurisdiction is as fatal to the proceedings of one court as to those of another. No court can render a valid judgment without, jurisdiction. It is said that “it is not to be assumed that a court of general jurisdiction has in any ease proceeded to adjudge upon matters over which it had no authority; and its jurisdiction is to be presumed, whether there are -recitals in its records to show it or not.” Cooley Const. Lim. 406. It is a presumption founded on an assumption. But suppose, in a direct proceeding for that purpose, the fact is demonstrated that this assumption is not correct, what becomes of the presumption ? We say that every presumption is to be indulged in favor of the jurisdiction of courts of record, and that their recitals are prima facie true, and they cannot be questioned in a collateral proceeding; but when directly questioned, in a proper proceeding for that purpose, the truth must prevail, whether the court be of the one grade or- the other in the classification of courts. We adhere to Crawford v. Redus. The appointment of Sivley as administrator de bonis non, with the will annexed, was not void. The fact that notice was not given to the legatees of the surrender of his trust by Summers, as executor, did not hinder the court from accepting the surrender by him, and appointing a successor in the administration of the estate. Notice to distributees or legatees of a surrender of his trust by an executor or administrator is a condition precedent to a valid settlement with the court of the administration account of the person resigning, but the statute, § 1122 of the Code, is not inconsistent with the right of the court to accept a resignation and appoint a successor at once, requiring the outgoing executor or administrator to give [732] notice and make settlement, until which he remains liable on his bond. It appears that Drone alone is entitled to be considered a creditor of the estate of Summers at the time of the sale of the land. It is objected that he did not buy in good faith, and that the purchase-money was not applied in good faith to payment of debts, and that nothing should be allowed against the land, on account of the indebtedness of the estate to Drone. Our view is that, in setting aside the sale of the land, the status quo of the parties, as nearly as possible, should be restored, and that, as Drone was at the time a creditor of the estate, he should still be so regarded, with the right to charge the third of the land sold and now in controversy in this suit, with one-third of his claim against the estate. We do not think the claim for improvements is allowable, but the defendants should not pay increased rent caused by improvements for which they paid, and are denied compensation. Tatum v. McLellan, 56 Miss. 352. The taxes paid by the respondents, except for the year 1877, should be allowed. Taxes were assessed, and the land would have been sold if the taxes had not been paid, and the complainants must do equity. Reversed and remanded.