Root v. McFerrin

Harris, J., delivered the opinion of the court. This writ of error is prosecuted here by both parties. The plaintiffs in error commenced their action of ejectment in the Circuit Court, to recover of the defendant the land in controversy, claiming title to it as the heirs at law of Aaron Root, deceased, their father, who died seised thereof. Prom the record, it appears that Benjamin C. Anderson, as his administrator, sold the land in controversy, on the 5th of October, 1840 ; that the purchaser took possession, under his purchase, immediately, and he and those claiming under him have held the same ever since; and that defendant claims title under this purchase. The respective ages of plaintiffs appear in the record. It is objected to defendant’s title, that it is void, because the Probate Court had no power to' order the sale of the real estate of said decedent for the payment of his debts, unless in compliance with the statute specially conferring that power. — 43 — To support bis title, defendant offered in evidence, deeds from Anderson, administrator, and others, deducing title from said administrator to himself, and then offered the records of the Probate Court of Pontotoc county, to show the authority of Anderson, as administrator, to sell the land. To this record, as evidence in the cause, plaintiffs objected, because it shows no citation executed according to the statute, by posting and publication, and no notice, either actual or constructive, to the “persons interested in said ■lands,” to appear and show cause “ why so much of the lands of said intestate should' not be sold, as will be sufficient to pay his debts.” Which objection was sustained by the court, so far as the said records were offered as evidence of authority in the administrator to sell the land of said decedent; but the same was admitted under the plea of the- Statute of Limitations. To this ruling of the court both parties excepted, and filed their bills of exceptions. Along with said record, defendant also offered the deposition of B. C. Earle, tending to show, that while the records of the Probate Court of Pontotoc county were not mutilated or lost, they were still not as full and perfect and formal as they should have been; witness could not say that anything actually done by the court was omitted in the minutes; but that he went into the office in 1849, and found the papers of the office in a confused condition. Defendant also offered to prove by Falconer, that in 1840, “The Holly Springs Banner” (the paper in which the citation referred to was ordered to be published) was conducted and published at Holly Springs, by one Foster, who had left the State, and is now beyond its limits; that no file of said paper is in existence; and that the receipt, produced and offered in evidence, from said Foster to Anderson, as administrator of decedent, for “advertising citation on 21st April, 1840,” and “notice to all persons, on the 19th June, A.D. 1840,” was in the handwriting of said Foster. To all which testimony offered with said record, plaintiffs objected, and this objection was sustained, and defendant excepted. Defendant next introduced one Teel as a witness, who proved, that valuable improvements were made on the premises by defendant, worth $6000, including cost of putting apple and peach orchards (estimated at $250) on the land. To this testimony, as to the cost of the orchard, plaintiffs objected. The objection was overruled, and plaintiffs excepted. — 44 — The evidence here closed, and the plaintiffs asked the following instructions: If the jury believe from the evidence, that the plaintiffs were all minors at the time the cause of action accrued, then the Statute of Limitations did not begin to run against any one of them until all were of age, and they must find for the plaintiffs. Defendant objected to this charge, and in lieu thereof requested the following : 1. That if the jury believe from the evidence, that on the 24th day of February, 1844, one of the plaintiffs had attained the age of twenty-one years, and was not at that time a married woman, insane, without the limits of the United States, or personally imprisoned, and that this action was not brought until after the lapse of three years from the 24th day of February, 1844 ; and if they further believe from the testimony, that the land sought to be recovered in this action, was sold by the administrator of plaintiffs’ father, by virtue of an order of the Probate Court of Pontotoc county, fairly and in good faith ; and that the purchaser at such sale paid the purchase-money therefor; and the land has been held adversely under said sale, since the year 1841; and that the plaintiffs claim said land, as the heirs of Aaron Root, deceased, then they must find for defendant. 2. That if they believe from the evidence, that any one or more of plaintiffs were twenty-one years of age, and not under any disability to sue, as much as five years before the bringing of this suit, and that during that time, the land sued for has been held adversely by the defendant, and those under whom he claims, they must find for the defendant. All of which charges were refused by the court. But in lieu thereof, the court gave the following : “If the jury believe, from the evidence, that any of the plaintiffs were of the age of twenty-one years at the time of the passage of the Act of 1844, and the suit was not brought within three years from that date, or that any of said plaintiffs were minors at the date of that act, and the suit was not brought within five years of their coming of age; in either case they will find for defendants as to them; but as to the other plaintiffs, if any were under age at the date of the Act of 1844, and had not reached their majority more than five years before the — 45 — commencement of this suit, they 'will find for them, as if they had sued, without joining the others.” To the refusal of the court to give the charges requested, and to the giving the one so given by the court, both parties excepted respectively. The errors assigned may be classed under the following heads : 1. The court erred in refusing to allow the record of the Probate Court of Pontotoc county to be read to the jury, as evidence of the authority of the administrator to make sale of the land in dispute; and in allowing it to be read under the plea of the Statute of Limitations, in connection with the administrator’s deed, as evidence of adverse possession. 2. The court erred in the exclusion of the testimony of Earle and Falconer. 3. The court erred in permitting the testimony of witness Teel, in relation to the value of the orchards, to go to the jury. 4. The court erred in refusing the charges asked, and giving that submitted to the jury. 5. The court erred in refusing a new trial. 1. For the defendant it is insisted that the exclusion of the. transcript of the record, offered in evidence, as tending to show legal authority in the administrator to sell this land, was erroneous. And we are earnestly urged to review the repeated decisions of this court on the point now submitted, on account of a supposed inconsistency between the doctrines of the earlier and late cases. We have carefully considered the arguments, briefs, and references made by counsel and submitted to us, with a view to discover what, if any, inconsistency in principle exists in the cases referred to, from Campbell v. Brown etal., in 6 Howard, down ; and while it may be perhaps admitted that in our own, as well as other reports, there has not been as much regard paid to technical accuracy in the language employed, in stating and applying the distinctions between courts of special and limited authority, and those of original and general jurisdiction, as might be desirable, yet we are unable to perceive the great inconsistency relied on by counsel for the defendant. On the contrary, the language cited, when considered with relation to the facts before the court, and the subject it was employed to discuss in each case, considering their number, will be — 46 — found to be in singular harmony with the able opinions contained in our earlier reports on this important subject. 1 How. 62; Ib. 444; 2 Ib. 604. 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. Such is the doctrine announced by Judge Trotter in Campbell v. Brown, 6 How. 234; Gwin v. McCarroll, 1 S. & M. 351; Enos v. Smith, 7 S. & M. 85; Ridley v. Ridley, 24 Miss. 648; Blair v. Childress, 25 Miss. 78; Steen v. Steen, Ib. 513; Joslin v. Coughlin et al., 26 Miss. 135; Gelstrop v. Moore et al., Ib. 206; Currie v. Stewart, Ib. 646; and 27 Miss. 52 (same parties); Lee v. Gardner, 26 Miss. 543, is not inconsistent with this doctrine. So also Gelstrop v. Moore, 26 Miss. 209; Joslin v. Caughlin, 26 Miss. 141; Hardy v. Gholson, 26 Miss. 72; Currie v. Stewart, 26 Miss. 648; Wall v. Wall, 28 Miss. 413; Cason v. Cason, 31 Miss. 592, 3; Hutchins v. Brooks, 31 Miss. 432; Henderson v. Winchester, 31 Miss. 294; Lee v. Bennett, 31 Miss. 128; and Servis v. Beatty, 32 Miss. 86-7. On the death of the ancestor, the title to his real estate vests immediately in his heirs, and can only be divested by their own voluntary deed or act, or by the judgment or decree of a competent court, “ by due course of law.” The administrator as such has no interest in or power over the land belonging to his intestate at his death; nor has the Probate Court jurisdiction over it, for any purpose whatever, by the Constitution, or inherently in the nature of its organization. It is only by virtue of the special, conditional power, conferred by legislative grant, and restricted in its exercise to the happening of the particular event named in the act, that the Probate Court can assume to exert any jurisdiction over land, which by law is vested in the heir. Until the happening of the condition or event specified in the act, no power or jurisdiction — 47 — is permitted bj the statute to be exercised by either the court, or its officers, over land. The particular “jurisdictional facts and acts” prescribed by law, must first happen in each particular case, and be judiciously ascertained of record, before the power of the Probate Court to order the sale of land attaches. 1st. There must be a report of insolvency by the administrator, exhibiting an account of the personal estate and debts of the estate, to the court. 2d. Citation must issue to all persons interested therein. 3d. This citation must be posted and published, requiring the attendance on a given day, according to the statute. 4th. At the time specified in said citation, or some other appointed time, the court shall hear and determine the allegations and proofs, as to the existence of these “jurisdictional facts,” upon which its power depends. If the judicial investigation should prove, that the personal estate is insufficient for the payment of the debts, and the persons interested and notified to attend, show no good cause to the contrary, then for the first time has attached this special, limited jurisdiction, to order the sale of the land belonging to 'the heirs of the estate, thus reported insolvent. Jurisdiction must be thus acquired in each case, over the parties, and over the subject-matter, by the happening of the event, and the performance of the conditions named in the act, before the court can make the order of sale; and the record must show on its face, these jurisdictional facts, or that they were established, to the satisfaction of the court, on the hearing of the allegations and proofs submitted to it. To hold, that these important facts, upon which the statute has made the power of the court to depend, shall rest alone in the uncertain memory of the probate judge, or casual bystanders or parties, would be to make the discretion of the court, the only limitation upon its powers. The infant and absent heirs, for wffiose benefit this power has been so peculiarly limited and restrained, in a very few years, might search in vain for the real truth, among the false “presumptions” which are invoked for its concealment. The record must show that in the judgment of the court, every fact existed, and every act had been done, which was necessary48 to give the court jurisdiction, though the evidence upon which that judgment was founded, need not appear. After the fact of jurisdiction is established in the record, both over the subject-matter and the person, then all the presumptions arise in favor of their judgments, in these courts of special and limited jurisdiction, which inherently belong and are applied to courts of original general jurisdiction. In the one case, the court’s power and jurisdiction is self-existing, inherent, always ready to be exercised over that subject, without a precedent investigation, to ascertain certain facts, upon which to found its action. It is hence called “original,” because beginning with its constitution, and not attaching after the happening of some event or fact, which calls its power into being. It is called “general,” because it applies to all subjects embraced within the object of its original organization, and to all parties who can be reached by its process, and bound by its power. But in the other (a court of special and limited jurisdiction), its powers are dependent, inferior, and derivative, not inherent, superior, and original. Until the facts upon which its authority depends are shown to exist, it has no vitality. As soon as it has performed the particular duty enjoined upon it, the power ceases. We must be careful to separate in our minds, the general powers of the Probate Court, as organized under the Constitution, from those of the Probate Court, exercising a special authority, not derived from the Constitution, but delegated by the legislature over a particular subject, and under certain particular circumstances. This doctrine finds its sanction everywhere in the analogies furnished by legal science. It is the same distinction existing between the general rights of ownership and a special trust; between the rights and powers of the principal and the special and limited authority of the agent; between a general power and a special power, to do a particular thing ; between original power and delegated authority ; between superior and subordinate. While the law regards with favor and confidence the acts of the one class, and indulges every presumption of their regularity and propriety, it watches with extreme jealousy, the conduct of the other. Hence the reason of the rule, that in all cases of special and limited authority or jurisdiction, the — 49 — power to act must appear on the face of the proceedings, and no presumptions in favor of its existence will be indulged. The rule is universal in all courts, and independent of statutory enactments, that the record must affirmatively show, that the party whose rights are directly and immediately the subject of litigation, had notice, either actual or constructive, of such proceedings, before he can be bound or concluded thereby. 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. 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. The great reason why judgments should be regarded as thus conclusive is, that there may be an end of litigation. “ Sit finis ad litem.” Public policy demands submission to judgments that have been fairly invoked, fully considered, and finally pronounced; but neither justice, public policy, nor the organic law of the State, will sanction the denial of the right to be heard, by himself, or counsel, or both, to any citizen. The Constitution declares, that political power is inherent in the people; that free governments are founded on their authority, and established for their benefit; that even for crimes, no man shall be deprived of life, liberty, or property, but by due course of law; that the courts shall be open, and every person, for injuries of every character, shall have remedy by due course of law, and justice and right shall be administered without sale, denial, or delay; that no person shall be debarred from prosecuting or defending his cause before any tribunal in the State. In violation of these rights and prohibitions, designed to protect the liberty and property of the citizen, the courts established “ for his benefit,” and to administer “ right and justice without sale, denial, or delay,” can pronounce no valid judgment. The opportunity to avail himself of these rights, is as essential as the — 50 — rights themselves, and inseparably incident to them ; and hence, this doctrine of “notice” is applicable alike to all tribunals and all judgments under our system. It cannot be tolerated that the doors of justice should be closed against a party who has never heard that his rights were in dispute in the courts, or had an opportunity to defend them. The whole policy and practice of our courts, under the principles of the organic lav/ to which we have just referred, reprobate and condemn such a doctrine. The most liberal policy is extended to the citizen, whether plaintiff or defendant, by our laws. Forms are abolished in pleading, amendments allowed, new trials granted, bills of review, appeals and writs of error provided for, and courts of equity, with all their remedial powers established, that right and justice may be administered without denial. These rules and principles are mandatory to all the departments of government, and to none more beneficially for the protection of private rights, than to the judicial department. The hardship of these cases upon purchasers at administrators’ sales, and the' disquietude in such titles so frequently occurring, are urged upon us as reasons for reviewing the rule heretofore established. Rightly considered, there is no greater hardship or disquietude resulting from the disregard of the act of the legislature under which the sales are made, than from the disobedience and disregard of other laws, human and divine, resulting in loss of life, liberty, or property. If men, with all the means of information which the law has wisely afforded, will not take the trouble to examine 'the validity of titles which they seek to acquire, but trust to the good faith as well as legal knowledge of administrators, or to the competency and integrity of the officers appointed by law, and will neither examine the records for themselves, nor procure competent legal advice, always at hand, to know what they do, they should not expect courts to relieve them of the consequences of their own folly. It is simply a question between them and the heirs — often children,— neither cognizant of their rights nor responsible for the errors and omissions complained of. Which shall lose the title ? Upon whom shall the penalty fall ? Upon the disobedient adult, or the passive ignorant minor ? — 51 — We think the rule is wise, just, well settled; and if disquietude results from its observance, it will generally fall on those who, in all ages, have warred against the law: the neglecters and violators of its wise and humane precepts. We think, therefore, the rejection of this record, which was silent as to the posting and publication of citation as required by law, and showed no notice to the parties interested, so far as it was offered as authority for the sale by the administrator, as well as the rejection of the evidence of Earle and Falconer, intended, doubtless, to supply by parol the omission'in the record, was proper. Was this evidence (the record and deed from Anderson) admissible under the plea of the Statute of Limitations ? Is the remaining point under the first head, to be considered ? The fact of possession, and the quo animo with which it was commenced and continued, are questions distinct and separate from the validity of deeds or paper titles generally. That a deed is even void for want of some requisite of the law as evidence of a conveyance of the legal title, does not render it incompetent to establish extraneous facts unconnected with the question of a paper title to which it may have relation. ‘ For instance, it is evidence of the fact that such a deed, although invalid, was executed, should that fact be a matter of controversy, as it is evidence of any other fact which it tends to establish when such fact is the matter in issue. Hence, under the plea of the Statute of Limitations, generally a void deed, record, or proceeding may be introduced to show the fact of possession held under it, and the quo animo, with which such possession was taken; as between the parties to such deed, record, or other conveyance, there could be no question of the truth of this proposition. And as mere acts and declarations of the vendee tending to show the character of his possession, and to qualify and explain the character of that contemporaneous act, they must be admissible, as a part of the res gestee, even where .third parties are concerned. We think, therefore, there was no error in allowing this testimony to go to the jury upon general principles. It is, however, much stronger when considered in reference to the peculiar provisions of the Act of 1844, 5th section, relied on in this case. Hutch. Code, p. 830. — 52 — It is said, however, on the part of the plaintiff below, that the judgment should be revoked, because of the admission of the testimony of Teel, proving the value of putting the apple and peach orchards on the laud. The sfatute allows the jury to offset, against any damages assessed by them in favor of the plaintiffs, the value of all valuable, but not ornamental improvements. We think this testimony was competent for the consideration of the jury, as there is proof in the record that plaintiffs claimed damages, and this was proof of the annual value of tho land. It is next insisted by both parties that the court erred in giving the charge submitted to the jury, and in refusing their charges respectively. The charge objected to asserts that if any of the plaintiffs were of age on tho 24th February, 1844 (date of the Act of Limitations), 'and suit was not brought within three years from that date, or if any were minors at the date of that act, and suit was not commenced in five years of their coming of age, in cither caso the jury will find for the defendant as to them. But as to the plaintiffs who were under age at the date of said act, and had not reached their majority more than five years, the jury should find for them, as though they had sued alone. From the record it appears that suit was instituted on the 12th September, 1856. That Sarah Jane Carey was born 1st October, 1822. James A. Boot was horn 12th October, 1826. Harriet H. Couch was born 8th June, 1828. Margaret A. Boot was born 18th December, 1831. Elizabeth 0. Boot was born 6th May, 1833. Thomas J. Boot was born 5th January, 1838. Sarah Jane married Miles Carey 23d December, 1845. Harriet H. married-Couch, who died in tho spring 1856. It is insisted, by defendant’s counsel, that this is a joint action by six plaintiffs, and the recovery could only have been joint. It is admitted, that the principle established in Jordan v. McKenzie et al., 30 Miss. 32, in relation to joint rights, “ that the disability of one or more joint owners will not save the rights of others, not so affected, from the operation of the statutory bar, — 53 — and that when one joint owner is barred, all are,” has no application to realty in this State, held by descent. Under our statutes of descent and partition, there is no substantial difference left between coparceners and tenants in common. Chancellor Kent, in the 4th volume of his Commentaries, says, that the distinction between them may be considered as essentially extinguished in the United States (see p. 407). The interests of the heirs in the real estate of the intestate under our statutes, may be regarded as joint and several to some extent. While all may join in the action of ejectment as held by this court in Corbin v. Cannon et al., 31 Miss. 570, their rights are yet several and subject to partition. Each heir is entitled to his distinct and equal share of the whole in severalty. The rights of the one, although connected with, are by no means dependent upon, and inseparable from, the rights of the other. There is, therefore, much reason for the distinction. In the case of joint owners of personal property, when the rights of some are extinguished by the statutory bar, each having only a joint, and not a several, interest in the subject, all are barred of a recovery for defect in their legal title. But, in the case before us, where the interests partake of both characters, joint as well as several, the destruction of the rights of the one will not affect the legal title of the others. The case stands, therefore, as upon a joint and several demise at common law, where the jury may find for or against any number of the plaintiffs, as the evidence, in their opinion, may justify. See 12 S. & M. 58, and the 18th instruction for plaintiff, p. 26. And especially is this so under the Pleading Act of 1850, s. 15, where it is said, “ that in every stage of action, the court shall disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party. And no judgment shall be reversed or affected by reason of such error or defect.” Nor is the case before us affected by the decision in the case of Masters et al. v. Dunn et al., 30 Miss. 264, where it is held that if, at the time a joint cause of action accrues to several plaintiffs, all of them be under a disability to sue, the Statute of Limitations will not commence running until the disability be removed from all. This decision was made in an action of detinue for a slave, and — 54 — only declares that the plaintiffs below (Dunn et al.) are within the saving of the Act of Limitations of 1822, not repealed by the Act of 1844, as decided in White v. Johnson, 23 Miss. R. 68, and Simmons et al. v. Pickett, 24 Miss. 467. That clause of the statute does not embrace the action of ejectment; and hence, this case is not within its operation or the principle of the decision founded on it. We think, therefore, there was no such error in this instruction or in the verdict (which is in accordance with it), as would authorize the interposition of this court. Let the judgment be affirmed, each party paying half the costs.