Belt v. Adams, 86 So. 584

86 So. 584 | Miss. | 1920

Ethridge, J.,

delivered the opinion o'f the court.

(After stating the facts as' above.) There are many exhibits to the bill, and numerous allegations deemed not material for the purpose of this opinion to be set forth. In our opinion the allegations of the bill are sufficient, if true, to authorize the court t,o grant relief. While L. Carlton Belt at his death owed a note against the lands in controversy, which constituted a basis for the establishment of a vendor’s lien, and in a proper proceeding, properly carried out, a sale thereunder would divest title out of the estate of said L. Carlton Belt, which title would be superior to the will and the rights created under the will, still the allegations of the bill are that the defendants had no notice under such suit, and that no order for publication had been made. The exhibits to the bill do not contradict this allegation, because the exhibits do not show any entry of an order of publication, or notice published, if any was published. The notice itself is missing from the record. It is well-settled law in this state that where a notice is to be given in lieu of personal summons, all of the requirements of the statute as to such notice must be strictly complied with in order to obtain jurisdiction of the person. This being a jurisdictional matter, it is not cured .by recital in the decree against a direct proceeding attacking it. See Ponder v. Martin et al., 119 Miss. 156, 80 So. 388; Id., 78 So. 929, and the authorities-therein cited.

If, however, it be conceded that the notice was sufficient to bring the defendants into court, still the allegations of the bill show that the debt was paid off and discharged before the sale in that proceeding was had. The record fails to show, also, that any proof was taken as to the minors, the decree reciting only the answer of the guardian ad litem and the exhibits to the answer of the guardian ad litem, and the exhibit to the bill was merely a note which may or may not have been paid and discharged, or might have been void or voidable for some reason.

Again, the bill in the Jenkins foreclosure proceeding showed that Mrs. Belt was the executrix of the will of L. Carlton Belt, and that the testator had died testate at his home in Georgia, and that Mrs. Belt had qualified as executrix, and for that reason she could not permit the lands to be sold under the said note and buy it in, because under the direction and terms of the will she was charged with the duty of paying the debts, and according to the allegation of the bill had sufficient funds from the estate of her husband to enable her to do so, and that she had actually done so. The proceeding was also defective because White appears to have been acting under appointment of the court in the capacity of guardian ad litem, and as such it became his duty to protect the interest of the minors throughout the proceeding, and might become his duty to attack a sale. We think he was incompetent to act as a commissioner in making the sale if in fact he had been appointed guardian acl litem for the minors. The two positions are antagonistic and inconsistent. See Ponder v. Martin et al., 119 Miss. 156, 80 So. 388, supra.

Again the defendant claims through the deed of trust given by Mrs. Belt to Eve in 1867, long prior to the institution of the Jenkins suit. Of course, the deed of trust conveyed what title Mrs. Belt then owned, which under the will was the life estate. It is true that after the giving of the deed of trust she attempted to acquire title through the commissioner’s sale above mentioned, and it is insisted that the deed then obtained inured instantly by operation of law to Eve.

It is unnecessary to decide what effect this- would have on a mortgage or deed of trust where at the time the party owned a limited or particular interest, and after-wards acquired a full and complete title before the sale, because if we concede that the deed, or whatever interest under the deed, acquired at the commissioner’s sale, resulted by operation of law to vest in Eve, or his trustee, whatever interest she acquired, it could not have any greater effect than conveying to them such interest as she had., and they could not claim under this deed as bona-fide purchasers, because they would take the title charged with all the defects which existed in Mrs. Belt. The very proceeding in which this deed was made points out to all buyers the fact that she. was not authorized, because of her trust relations, to purchase.

There are ample facts shown in the record to charge the defendant with notice, and if he had used any diligence in following up and investigating the facts and circumstances disclosed, the full extent of the complainant’s right would have been disclosed. So, in our opinion, he bought the title with the infirmities to the same extent as if he had actually read the will and all of the proceedings charged in the bill.

The remaining question deemed necessary to deal with in this opinion is whether or not the remaindermen, the appellants, were barred by the statute of limitations. It is alleged in the bill that they had no actual knowledge of any of the facts prior to 1917. It is clear from the aaíII that Mrs. Belt had the exclusive possession during her life, that is to say, until 1917, either in her own possession or through her vendees, and during this period of time no action could be brought for possession for the defendant, and his grantors were in rightful possession during the life of the life tenant. The deed of trust to Eve conveyed this life estate, and Avheh he foreclosed it he was in possession rightfully under this deed, and could not be displaced. We .think these principles are fully settled, and that the appellants are not barred by the statute, by the decisions of Reynolds v. Wilkinson, 119 Miss. 590, 81 So. 278; Clark v. Foster, 110 Miss. 548, 70 So. 583; Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311; Morgan v. Hazlehurst Lodge, 53 Miss. 665. The present case on its facts is distinguishable from the cases relied upon by the appellee. We think it error to sustain the demurrer to the bill and the judgment is reversed, and the cause remanded.

Reversed and remanded.