Gibson v. Currier

Whitfield, C. J., delivered the opinion of a majority of the court. This is a suit by Mrs. Tansey Gibson, Lora Jones and J. B. Jones, Jr., heirs at law of E. H. Jones, .deceased, and Mrs. Kate L. Barlow, against Erancis Smith, Caldwell & Co. and their trustee, C. C. Currier, seeking to perpetually enjoin a sale of the lands in controversy under a trust deed given by O. W. and N. E. Eord on January 11, 1890, to secure $800 and interest; and also to have said trust deed canceled as a cloud upon the title of complainants. The facts are these: On September 5, 1879, Mrs. Eliza Jones bought from Mrs. M. C. Matthews and husband about 2,700 acres of land in Copiah county for $3,300, secured by vendor’s lien. This tract included the land now in controversy. On September 10, 1880, Eliza Jones died intestate, leaving her husband, J. B. Jones, tenant by the curtesy, and Eugene H. Jones and Willie Jones, a minor, as her children and heirs. On November 25, 1882, Mrs. M. O. Matthews filed a bill to foreclose the vendor’s lien reserved in her deed to Eliza J ones, making J. B. Jones, Eugene H. Jones and Willie Jones defendants thereto; this suit being numbered 1,164 on the docket. Einal decree ordering ’sale to satisfy amount due (i. e., $3,850) and costs was in time rendered, the lands were sold and bought in by M. O. Matthews for — 247 — $264, in April, 1883, and this sale was in due time confirmed. On same day she conveyed all the lands to J. B. Jones, the husband of Eliza Jones, for $3,850. On the same day J. B. Jones conveyed to Mrs. N. E. Eord the land in controversy (720 acres) for $5,500 ($1,000 cash, balance evidenced by promissory notes, and secured by vendor’s lien, which notes were assigned to Matthews by Jones to secure Jones’ notes to Matthews). On October 2, 1887, Willie Jones became twenty-one years of age, and on Eebrnary 9, 1888, he appealed from the decree rendered against him in the foreclosure suit brought by M. O. Matthews against the heirs of Eliza Jones. The supreme court on May 21, 1888, reversed the case, because the record failed to show proper process for the minor, Willie Jones, or that the court had acquired jurisdiction over him. On October 10, 1888, Mrs. M. O. Matthews filed an amended bill in said original foreclosure suit (No. 1,164) against same parties, reciting above facts, and further that Mrs. N. E. Eord had paid a large part of the purchase money for the 720 acres due by her to J. B. Jones, and by J. B. Jones assigned to Matthews, but that there were still $3,100 due on the Eliza Jones notes; that complainant did not seek to subject the Eord 720 acres (the land now in controversy), did not aver that the original process had been properly served as to the minor, Willie Jones, and did not ask to have the return thereon amended, but asked for a decree to sell the other portion of the land. On May 15, 1889, another final decree was rendered against J. B. Jones, Eugene BE. Jones and Willie Jones for the sum of $3,971.48, and the original tract, less the Eord 720 acres, ordered sold. On August 5, 1889, the lands described in the decree were sold, and M. O. Matthews became the purchaser, bidding therefor the sum of $4,038, and sale duly confirmed on November 14, 1889. This sale did not include the lands involved in this litigation. Eugene BE. Jones died intestate in 1889, leaving complainants, Tansey Gibson, Lora and J. B. Jones, Jr., as his heirs. J. B. Jones, the husband of Eliza Jones, died in April, — 248 — 1899, thus terminating the estate by tbe curtesy. Willie Jones, in 1899, conveyed one-fourth, of his one-half interest in the 7'20-acre tract to B.. P. Willing, Jr., Willing- conveyed to Kate L. Barlow, and afterwards Willie Jones conveyed the remainder of his interest in said 720-acre tract to Kate L. Barlow, so that said Kate L. Barlow became the owner of all the interest of said Willie Jones in the land in controversy. On January 11, 1890, N. E. Eoi’d executed a trust deed on land in litigation to secure indebtedness due Erancis Smith, Caldwell & Go., which is still unpaid. On May 26, 1891, she executed a junior trust deed to secure certain indebtedness due BE. BL Barlow. The land was sold by the trustee under this junior trust deed, and on September 20, 1897, BT. BE. Barlow became the purchaser at said trustee’s sale. Later 0. 0. Currier, trustee, advertised the land for sale under the Smith, Caldwell & Go. trust deed, said sale to be made on March 19, 1900. The original bill of complaint herein was filed on March 14,1900. At that date matters stood as follows: C. O. Currier, trustee for Erancis Smith, Caldwell & Co., held trust deed on entire 720 acres from N. E. Eord. BE. BL Barlow claimed entire tract as purchaser at foreclosure sale under junior trust deed executed by N. E. Eord. Tansey Gibson (sister of BE. BE. Barlow) and her two children claimed half interest in the land as heirs at law of Eugene BE. Jones, deceased, and Kate L. Barlow (wife of BE. BE. Barlow) claimed half interest in the land as vendee of Willie Jones. The original bill of complaint made Currier, trustee, and Smith, Caldwell & Oo., beneficiaries, defendants. An amended bill was filed, joining BE. BE. Barlow as • defendant. The bill set out the above facts; averred that the original decree in No. 1,164 was void as to both.Eugene BE. Jones, the adult, and Willie Jones, the minor; that N. E. Eord only acquired the life estate of J. B. J ones in the land, and that estate had terminated by the death of J. B. Jones. The answer of Currier, trustee, and Smith, Caldwell & Go. admitted most of the facts, but denied the allegation of ownership by complainants; denied that the original — 249 — decree in No. 1,164 was void as to either Engene H. Jones or Willie Jones; denied that N. E. Eord only acquired the life estate of J. B. Jones, but averred that, even if the decree in No. 1,164 was voidable as to Eugene IT. Jones or Willie Jones, one- or both, still the said N. E. Eord acquired title in fee simple, for the reason that she purchased and paid for the land after the rendition of the original-decree in No. 1,164, and before appeal, in good faith, and without notice of any alleged defect in the process or decree, and that any right to proceed against her was barred by the statute of limitations of two years. The answer further denied that H. IT. Barlow had title, because the sale to him was by collusion with N. E. Eord; that H. H. Barlow was the real complainant, and that he was estopped by his conduct with Smith, Caldwell & Co. to question the validity of their trust deed, and that Nate L. Barlow was also estopped, as being a party to her husband’s fraud. Currier, trustee, and Smith, Caldwell & Co. also filed a cross-bill, ashing for affirmative relief; averring that, notwithstanding the reversal of No. 1,164 by the supremo court, the decree therein was in fact valid and binding on all parties, because, while it is true that the process for the minor, Willie Jones, was defective, it was a further fact that all the jurisdictional facts necessary to give the court jurisdiction of his person did in truth exist, even though they did not appear in the record of suit No. 1,164. They asked to be permitted to show this, and to have the process in No. 1,164 amended, and the decree declared valid and binding. Much proof was taken, and upon final hearing a decree was rendered dissolving the injunction as to the sale of the half interest of Eugene IT. Jones in the land, and perpetually enjoining the sale under the trust deed to C. C. Currier, trustee, of the half interest of Willie Jones. Tansev Gibson, Lora Jones and J. B. Jones, Jr., appeal, and Currier, trustee, and Erancis Smith, Caldwell & Co. prosecute a cross-appeal. This court decided in J. P. Matthews v. J. B., Eugene H. and Joseph W. Jones, 4 South, 547, that the decree of the chancery — 250 — court in No. 1,164 (tbe original decree) was void as to the minor, Joe Willie Jones, because that court had not acquired jurisdiction over the minor, by reason of the failure to serve the process as required by law. Cooper, J., delivered the opinion of the court, which was as follows: “There is nothing’ in the record from which the court can find that the process for the infant, J. W. Jones, was served upon the father, mother or guardian, or that the infant had no father, mother or guardian in this state; and only upon such service, or upon its appearing that the infant had no father, mother or guardian in the state, could the court acquire jurisdiction over him by personal service only. Code 1880, § 1531 (1530) ; Erwin v. Carson, 54 Miss., 282. It may be that J. B. Jones, one of the defendants, is the father of said infant; but, in the absence of such fact of record, the court cannot assume it to be true. The final decree is of an inseparable character, and a reversal as to the infant necessitates a reversal as to all parties.” And this was so held, and correctly held, though the bill in No. 1,164 averred that Eliza Jones was dead, and that J. B. Jones was her husband, and that Joe Willie et al. were her heirs. There is no statement in all this that J. B. was the father, or Eliza the mother, or who weré children, if any. It was not a merely erroneous decree. It was, as to the minor, Joe Willie Jones, absolutely void. It could not have been otherwise, since the court acquired no jurisdiction and service, as required by law, on the minor, was a condition of jurisdiction. That judgment of this court was the law of that case. It nowhere appeared in the record that the process for the minor, Joe Willie Jones, had been served on the father, or that he did not have a father living in this state. All parties so understood the decision, as shown by the statement in the amended bill filed when the cause was remanded. The statement is as follows: “No effort has ever been made by the complainants to enforce this decree (the original decree), because, as hereinbefore shown, the reversal of the original decree obtained by M. C. and J. P. Matthews against J. B., E. II. and J. W. Jones, or William — 251 — Jones, as be is described in said proceedings, rendered any effort to enforce tbe last-obtaind decree against J. B. Jones useless, and of no effect.” And again tbe amended bill recites: “Complainants do not ask to subject said last-described land” — tbe very 720 acres here involved. It may be noted, in passing, tbat tbe 720 acres here involved were deeded by J. B. Jones to Mrs. N. E. Ford; tbat sbe gave a senior trust deed on tbis land to secure tbe appellees, and a junior one to secure H. H. Barlow, and tbat be foreclosed bis trust deed, and tbat Mrs. Ford bas now, and when tbis present litigation began, bad no sort of interest in tbe result of tbis suit. It may further be remarked tbat J. B. Jones’ interest was not identical with, but antagonistic to, tbat of his minor son, Joe Willie Jones (be, tbe father, being tenant by tbe curtesy), and tbat be actually bought tbe lands at tbe sale under tbe original decree in No. 1,164 for tbe very purpose of cutting out bis children’s title. And finally it may be said, in tbis view, tbat tbe evidence abundantly shows that tbe mortgage company’s security on Eugene Jones’ half interest will be more than sufficient to pay off its debt. Mrs. Ford, therefore, is not. harmed, for sbe has no interest to be affected, and tbe creditor, mortgage company, is not harmed, because it is abundantly secured. These are observations by tbe way, however.' We must determine tbe case according to law, in view of the settled rule tbat tbe chancery court must carefully protect infants’ rights, no intendments against them being allowed. In pursuance of this statement, as shown in tbe statement of facts given above, all effort by tbe complainant in tbat cause to subject tbe interest of said minor in tbe lands now in controversy was abandoned. Years afterwards, when Mrs. Barlow bad become tbe owner of tbis minor’s interest aforesaid, this present bill was filed, and tbe answer thereto was made a cross-bill; and in tbis cross-bill tbe prayer is, in part, tbat at tbis late day tbe court, at tbe instance of those who were entire strangers to tbe original suit to foreclose, should allow these strangers to have tbe process amended so as to show tbat said minor, Joe Willie — 252 — Jones, did have a father, and that he was served with a copy on his own account, because of his interest as a defendant. The effort was not to have the amendment so made as to show that the process for the minor was served by handing a true copy to the father, as part of the service on the minor, but simply to show that one copy was handed to a person who was the father, that copy being handed to him as a defendant, and not as a part of the service on the minor — relying on McIlvoy v. Alsop, 45 Miss., 374. It does not appear that any further effort was made to have the court allow the amendment, save to so pray in the cross-bill. The court’s attention was never again called to it by offer to make the proof or otherwise. But it is assigned for error, on this state of the record, that the court refused to allow the ‘amendment to be made. We think the action of the court was correct. There is a broad distinction between the Mcllvoy v. Alsop case and this case. In that case the bill averred (p. 373, 45 Miss.) that there was no guardian, and that the only surviving parents were the mothers; and the summons itself (page 366, 45 Miss.) commanded the sheriff to serve “Mary A. Exum and her children, Kinchen W. Exum, Robert D. Exum, and E. W. Exum, and Lucy O. Exum and her children” (naming them); thus, on its face, showing that the minors there had mothers, and naming them Mary A. and Lucy Exum. It was therefore shown in that case, in two ways, by the record, that the minors there had mothers, and who those mothers were, and that they had no guardian or father: (1) The bills showed there were no guardians or fathers, and that Mary A. and Lucy were the mothers; and (2) the summons itself showed that they had mothers, who the mothers were, and that the mothers were co-defendants, and the return showed that the mothers were served by handing each one a copy on account of their own interest as defendants. In other words, the record there did somewhere show that there were no guardians for the two sets of minors, that both the fathers were dead, and who the mothers were, and that they were served as defendants, with a copy each. Here the record — 253 — nowhere shows that this minor, Willie Jones, had no guardian, nor that he had no father in this state, nor that his father and mother were dead, nor does it show that the father was served as such, either in the summons or in the return. And yet the fact is that his father was living, and that he was a co-defendant, and that he had a copy handed to him by name, as co-defendant, but it was not shown by process or return or anywhere that he was the father. It is perfectly obvious that this case is different from McIlvoy v. Alsop in the particular being discussed. On the record, therefore, as it appeared to this court when the opinion was rendered by Cooper, J., it is clear that the decree was utterly void, and the lower court had no jurisdiction over the person of the minor, Willie J. Jones. Counsel for appellants insist that whether the court had jurisdiction depended upon the fact of service, and not upon the recitation of that fact. If that was a correct statement, as an abstract legal proposition, it no way helps appellants. Bor the fact is here that the father was not served as father, but simply as a co-defendant. Another fact is that nowhere was it shown that there was no guardian, no mother or father. The amendment, to avail anything, must necessarily have gone far beyond the prayer for amendment, and have shown not only that the person served was the father, but also that there was no guardian in this state. In truth, the prayer was in effect, to amend the process, as well as the return. It was properly refused. Before passing from this point, we call attention to the fact that the case of McIlvoy v. Alsop, supra, has been clearly overruled by the case of Erwin v. Carson, 54 Miss., 284. So far as the holding in the former that it is enough, when serving a minor who has no father or guardian in the state, when the mother is a co-defendant, to hand the minor a copy, and the mother a copy, not as mother, and part of service on the minor, but as a co-defendant, the court, carelessly enough, observes that “it would have been an idle ceremony to have given the mother two copies.” How can that which is a condition of jurisdiction — 254 — ever be “an idle ceremony ?” If, as may often be the case, the interests of the minor and the mother are antagonistic, how is the peremptory mandate of the statute complied with by simply giving the mother — the surviving parent — a copy in his or her capacity as defendant only ? In Ingersoll v. Ingersoll, 42 Miss., at p. 162, that great common-law jurist, Peyton, J., speaking for the court, said: “The process that was served on Caroline Inger-soll should have also been served on her father, mother or guardian, if she had any in the state; and, if not, that fact should be stated in the return, in order to justify the appointment of a guardian dd litem for her.” In Erwin v. Carson, Campbell, J., said the court was asked to overrule Ingersoll v. Ingersoll. Instead of doing that, the court distinctly reaffirmed it, modifying it in the single respect that the sheriff should, in his return, set out that there was no father, etc., in the county, instead of in the state. But in all other respects Ingersoll v. Ingersoll, on mature consideration, and in meeting a direct assult upon it, was upheld and maintained. Campbell, J., says: “As the process for an infant is to be served on the father, mother or guardian, ‘if he have any in the state,’ and as such may be in his county, the sheriff should return that he has executed the process on the father, mother or guardian, or that there is none such in his county; and upon this return, if it shows no father, mother or guardian in that county, it may and should be shown to the court that the infant has no father, mother or guardian in any other county of this state, and this fact should be recited in the decree for the appointment of a guardian ad litem. Until the process is executed on the father, mother or guardian, or it is made to appear that the infant has none in this state, the court cannot legally appoint a guardian, ad litem for such infant, for service on the father, mother or guardian, if any in this state, is part of-the required service on the infant.” Note the expression “service on the father, mother or guardian, if any in this state, is part of the required service on the infant.” This is squarely in con-' flict with the statement that one copy to the mother, as co-defend — 255 — ant, is enough, in McIlvoy v. Alsop. The copy tbe sheriff served on the mother in that case was given her in her capacity as defendant, and most emphatically not “as part of the required service on the minor.” The whole of the service the statute requires on the minor, and not part of it, is necessary to give jurisdiction over the minor. The doctrine thus clearly announced by Campbell, J., is undoubtedly the true construction of the statute, and is in harmony with decisions elsewhere on the same statute. See 10 Enc. PI. & Pr., pp. 604, 607, pointing out that “where the person required to be served is also a party defendant,” as here, he must be specially served for the infant, in order to bring the latter before the court, citing Cook v. Rogers, 64 Ala., 406; Hodges v. Wise, 16 Ala., 509; Helms v. Chadbourne, 45 Wis., 60; and other cases. We regard that part of Mcllvoy v. Alsop as overruled, therefore, by Erwin v. Carson,, supra, which was followed and approved in Moody v. McDuff, 58 Miss., 751. There is nothing in the plea of the statute of limitations. The purchase money was not paid. Mrs. Matthews paid no purchase money, did not even credit her bid ($264) on the decree, and did not take possession of the land. L. H. Matthews’ testimony shows this. She conveyed to J. E. J ones the day of the purchase, taking his notes. He never paid anything. J. B. Jones on same day conveyed, for $5,500, to Mrs. N. E. Eord, taking her notes. A decree was rendered January 7, 1888, for $3,097, amount of balance of vendor’s lien, against J. B. Jones, but no effort was ever made to enforce it, because of the reversal of the original decree by the supreme court. The law is imperative in requiring actual payment. No subterfuge or sham payment will do. Mrs. Barlow is not connected by any testimony with the facts which are claimed to estop her husband. We think there is no merit in the cross-appeal. So far as Mrs. Eord’s good faith is concerned, she knew, through her attorneys, all that was in the record, or ought to have known; and, besides, this statute of limitations does not mean the good faith of a purchaser from a purchaser. Jeffries v. Dowdle, 61 Miss., 504. Affirmed on appeal and cross-appeal.