Shannon v. Summers

Cox, J., This is an action of ejectment for a tract of land in Yalo-busha county, described as the south half of section 3, township 24, range 1, east. Defendants pleaded the general issue. • It was agreed that Aaron McOameron, deceased, was the common source of title. All of plaintiffs but J. M. Shannon were children of McOameron. Shannon deraigned title to an undivided interest through conveyances from McCameron’s other children. Defendants deraigned title through a sale made by E. B. Her-ron, administrator of McOameron, under an order by the chancery court of Yalobusha county, rendered March 30, 1882, which directed sale of said land, including the estate’s reversion in the dower of the widow of deceased, but excluding therefrom the homestead exemption, for payment of debts. The administrator’s report of sale showed that he sold “the following lands of said estate — to wit, S. í of Sec. 3, T. 24, B. 1, in said county of Yalobusha, first excepting and reserving from sale the homestead exemption of decedent and his widow’s dower, when W. 0. Bowland became the best bidder and purchaser.” The report [627] further recites that he sold also the estate’s reversion in fee in the ■widow’s dower in said land to the same party, W. 0. Rowland. This report of sale was ratified, approved, and confirmed by a decree rendered September 26, 1882, which recites that it appeared “to the satisfaction of the court that said sale was made, conducted, and concluded strictly in accordance with the forms and requirements of law and the decree of this court, and that the report thereof is in due and proper form.” Plaintiffs objected to the introduction of the said orders and the record of which they were a part, but their objection was overruled. The court directed a verdict for defendants, and rendered judgment “that plaintiffs take nothing by their suit, excepting that they have the homestead of Aaron McOameron, deceased; the same to be surveyed and laid off or ascertained by metes and bounds, when the plaintiffs may take possession thereof so ascertained; the same being eighty acres, to include the residence of said McOameron when he died, or the land on which said residence stood at that time; and the plaintiffs pay all costs.” It is urged against the record and decrees in the chancery proceeding that the entire proceeding was void, and the sale by the administrator a nullity, for the want of service of citation upon the heirs of McOameron to show cause why sale should not he made. ISTo citation was found in the file, nor was any note of the issuance and service of citation found in the general index to estates. The decree ordering sale, however, recites that it appeared to the satisfaction of the court that summons had been issued and duly served on all persons interested in said estate. This is sufficient to sustain the jurisdiction of the court as to this objection, as against a collateral aftack. Cocks v. Simmons, 57 Miss., 183; Silvey v. Summers, 57 Miss., 730. It is also urged that the sale was void because it does not appear that the administrator executed the statutory bond in the penalty of $500, as required by order of the court. The defendants were permitted to show by parol, by the testimony of [628] R.' B. Herron, administrator, that he executed a bond in the sum of $500; hut he could not say whether this was done before or after the sale, nor whether the bond was ever filed or approved. This was error. Parol evidence is not competent to prove the existence and contents of an instrument of record until it is shown that search has been made for it by the person charged with the custody thereof, in the place where by law it ought to be kept. Besides, the evidence, even if competent, falls short of proving the execution and approval of the bond before sale. This error, however, is not material to be considered in determining this case. Hor is it necessary to determine whether the recital in the decree of confirmation that said sale was made, conducted, and concluded strictly in accordance with the forms and requirements of law and the decrees of this court, imports that the bond had been made as required. In the view of this court, the sale was void because of the failure of the administrator to comply with sec. 18, art. 12, Constitution 1869, which required all lands sold in pursuance of decrees of courts or execution to be divided into tracts not to exceed one hundred and sixty acres. It is perfectly manifest from the record that the administrator offered for sale, and sold, the entire half section in a body, excepting and reserving the homestead exemption and the widow’s dower, which were not judicially ascertained and fixed. It is insisted, however, by appellees that all omissions and defects in the record of the chancery proceeding are cured by the two years’ limitation provided by Code 1880, § 2693, which declares that “no action shall be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith, and the purchase money paid, unless brought within two years after possession taken by the purchaser under such sale of such property.” It has been held by this court that this section applies where sales have been made in violation of sec. 18, art. 12, Constitution 1869. Bradley v. Villere, 66 Miss., 399 (6 South. Rep., 208). [629] But by its terms, Code 1880, § 2698, does not apply in any case unless the sale is in good faith. The burden is on the purchaser to show that the sale was made in good faith. Jeffries v. Dawdle, 61 Miss., 508. That burden was not met in this case. It is evident from the testimony of Herron, the administrator, and of Howland, purchaser, that the latter, in purchasing the land, acted as agent for the former, who was to take the land off his hands, and that while the administratof, who owned all the debts chargeable against the estate, gave the estate credit by the amount of Howland’s bid for the land, yet Rowland never paid Herron, either as administrator or otherwise, the amount of his bid. It is reasonably certain that the debt due by the estate paid Howland’s bid for the land, and that the purchase money was not paid otherwise. The sale was virtually made by the administrator to himself, and was consequently not in good faith within the meaning of the statute. We therefore hold the sale void because made in violation of a provision of the constitution, and it was not protected by the two years’ limitation, because not made in good faith. Subsequent vendees cannot shelter themselves behind the two years’ limitation where the original purchaser dould not. It is only the good faith of the parties to the chancery sale that is to be considered in determining as to whether the bar of the two years’ statute can be invoked. The good faith of subsequent vendees has nothing whatever to do with the application of the statute. Jeffries v. Dawdle, 61 Miss., 508. Her can the appellees (defendants below) successfully invoke the doctrine of innocent purchaser for value. Deraigning title through a chancery sale, they were charged with notice of everything in the record of the proceedings leading up to the sale and conveyance. It was manifest from the record that the sale was made in disregard of a provision of the constitution applicable thereto. Defendants are charged in law with a knowledge of this fatal defect in their title when they acquired it. Hence their title must fail. [630] The judgment of the court was erroneous, and will be reversed. Reversed and remanded. Teuly, J., dissented, holding that appellees are protected by the recitals of the decree and their own unquestioned good faith. Summers v. Brady, 56 Miss., 10; Sanders v. Sorrell, 65 Miss., 288 (3 South. Rep., 661).