75 Tenn. 585 | Tenn. | 1881
Lead Opinion
delivered the opinion of the court.
This bill was filed by complainants, part of the heirs of SamT W. Davis, who died in Greene county in 1864, leaving, besides complainants, two other children, as is stated in the bill, Eliza R., who had in-termarrid tvith John Moore, and Elizabeth, who had married W. H. Kautz, but has died, leaving one child, whose name is Anne E. Kautz, a minor, and resident now of the State of Texas.
This bill was filed the 13th of September, 1865, and charges the insolvency of the estate; that most of the personalty had been sold by the administrator; that the indebtedness was large, and it would be necessary to sell the real estate for payment of the debts. After an account showing the amount of the debts justly due and not barred by the statute of limitations, etc., a schedule of debts which had been presented to the administrator, was filed, amounting to upwards of $8,009. The administrator states that of the claims asserted against said estate, he has reason to believe most of them, and perhaps all, are just and bona fide debts against his intestate.
The heirs of the deceased are thus named, and asked to be made parties to this bill: Louisa Reed Davis, Mary Alice Davis, S. Virginia Davis, John Harrison Davis, and a grandchild, Anne E. Kautz. The father of this child, W. H. Kautz, and the child are made parties, and who are alleged to have been then in the State of North Carolina. The other children are stated to have been residents of Greene county, to be minors, and a guardian ad litem asked to be appointed for them, naming them.
In pursuance of an order of the chancellor, on the 21st of September, 1865, an order of publication was. made requiring creditors to file their claims, as shown
At the November term of the court an order is entered in the cause as follows: “By consent, two months are allowed the guardian ad litem to file an answer, so as not to delay.”
A subpoena was issued to the sheriff of Greene county for “Louisa R. Davis, Mary A. Davis, S. "Virginia Davis and John Harrison Davis, minors, and Anthony Moore, guardian ad litem for said minors, and also as such guardian for Anne E. Kautz.” They were to be summoned to answer the first Monday in November, the beginning of the regular term of the ehancery court. Moore seems to have been appointed guardian ad litem at the October rules by the clerk and master.- The deputy sheriff returned this subpoena with the following endorsement on it, not dated except as shown: “No such person as Louisa Davis found in my county: Executed the within on Eliza Davis on the 2d of October, 1865. Executed on Anthony Moore, and delivered a copy of original bill to him, on the 30th of October, 1865. ' The other defendants not to be found in my county. J. G. Gass, deputy sheriff.”
On the 15th of November, a decree is entered as follows: “ This cause came on to be heard before his
On these facts, the object of the present bill is to have the sale of the land set aside and held void as to complainants and a cloud on their title, on the ground that they were not parties to the proceeding, therefore not bound by it, or by anything done in said proceedings affecting their rights.
It is a fundamental pi’ineiple of our jurisprudence that no one is bound by the judgments or decrees of a court unless party to the proceeding, in some way, as may be provided by law. It is based on the idea embodied in our constitutions, State and Federal, that no man can be deprived of his property except by due process of law, and is a principle of such obvious justice as to need nothing said in support of it; its correctness approves itself on its bare statement.
It is now as well settled that all presumptions are in favor of the regularity of the action of judicial tribunals, and that the recitals of fact of this character in the face of their judgments and decrees are to be taken as true on a collateral attack, as this is,
The question on which this case turns, then, is, whether this recital that publication was had as to these heirs, stated to be residents of the State and of Greene county, is shown not to be true by the record, or that they were not in tact parties to the cause by publication.
Personal service in cases in chancery is dispensed with, and among other cases, “when the sheriff shall make return upon any leading process that the defendant is not to be found.” This is as to residents of the county. Publication is required to be published “four successive weeks in the newspaper mentioned in his order of publication, or designated by the general rules of the court. This proceeding being statutory, the statute alone regulates it, and must be pursued, or else it is done without authority and ineffective. The return of the sheriff, not to be found, is the legal prerequisite to such a publication in a case like this. No order of publication could be legally made, or publication had, until this return is made officially, as the basis of the action of the master.
We think, on examination of the endorsement of the deputy sheriff in this case, that it is certain the. return could not have been made before the 30th of
The return of an officer is the written statement of what he has done under the process in his hands: 2 Head, 127. The only return shown in this record, and the only one made that authorizes the publication, is the one recited above. This could not have been done before the 30th, unless we are to infer that a return was made of a fact before it had occurred. It could not have been that this return was in the office of the clerk on rule day before, to-wit, the 2d day of October, 1865, because it shows on its face that the writ was retained in his hands to the 30th, by the recital in it of a fact done on that day, to-wit, the service on Moore, the guardian ad litem. The collocation of the words shows it impossible that part of the return, to-wit, “the other defendants not to be found in my county,” could have been endorsed before the endorsement of the service on Moore on the 30th, as the language quoted is obviously a continuation of the previous recital, a fact added as a subsequent part of the return he was then making.
We therefore hold, that the recital in the decree
Several other questions are presented in this case which are necessary to be disposed of, as directly raised by the pleadings* or as springing incidentally from the result of holding the sale void as to the parties not served with process, nor properly made parties by publication.
First, was the sale void in toto, or only as to the persons not legally made parties to the suit? .
This question has been definitely adjudged in several well-considered cases in our State. In Valentine v. Cooly, Meigs R., 618, a sai. fa. had been issued to reach land descended to heirs, part of whom were minors and part adults. No service was bad on the minors, but service was had on the adults. The court held the judgment void as to the parties not served, and the sale of land under it void as to their interest, but valid as the adults, and the sale passing their title to the purchaser. In the case of Winchester v. Beardin, 10 Hum., 250, the same question was presented, and ruled the same way, citing the case from Meigs E. and approving it. At the same time the court expressly overrule, or rather explain and qualify the language of the court, apparently admitting of a
We think these cases are sound iu principle, as well as authoritative as long-settled rules that affect titles acquired under judgments or decrees of our courts. The same principle that holds the judgment void as to a party not served with process because such a party has not had opportunity to maintain or defend his right, would necessarily hold a party who did have such opportunity bound, he having been regularly before the court, and not precluded from asserting his right by reason of failure to make others parties who might have an interest in the property in common with him. He cannot complain that other parties are not regularly before the court, if he himself is so, with perfect freedom to maintain his rights in the subject-matter of the litigation.
The next question presented is, can relief be granted against the sale in favor of other defendants to the original proceeding, who are simply made defendants in this case but do not join in bringing the suit, the case being made out in their favor ?
A prayer is found in the bill of complainants, that they, together with their co-heirs, be restored to the
Under the cases decided by this court, of Gentry v. Gentry, 1 Sneed, 90; Ingram v. Smith, 1 Head, 427, and Allen v. Baugus, 1 Swan, 406, it has been definitely settled that where the parties have an interest as tenants in common, as in the first case, or a joint interest as in the other cases, it makes no difference whether they be defendant or complainant in a court of chancery, the court will deciee their rights, unless the .defendants waive, relinquish or disclaim the title in controversy.
Iii the case in 1 Sneed, the complainants and a ■defendant were tenants in common, and as such entitled to redeem a tract of land sold as the property of their ancestor. One of the parties claimed to have made a tender that fixed the right to redeem the land, which was refused. All the parties except one joined in a bill to enforce redemption. This one was made defendant, and answered, giving as reasons for not joining in the suit, that he doubted the validity of the tender and was not willing to join in the suit fearing it would fail and he be involved in costs, and then referred the question of the validity of the tender to the chancellor, stating he preferred the title should remain in the purchaser rather than go to the party who had made the tender. It was urged that he had relinquished his right, and the chancellor so held, but this court reversed that holding, and held he had not relinquished or disclaimed his right, and gave a
In the case of Ingram v. Smith, 1 Head, in a like case of contest as to title to negroes, where a portion of the owners were defendants, it was insisted that relief could only be granted to the complainants, and could not include defendants. Cooper, Sp. J., giving the opinion of the court, -said on this point: <cWe do not think so. It is the settled law of the court' of chancery that a decree may be made between co-defendants, grounded upon pleadings and proof between the complainant and defendants, and founded upon and connected with the subject-matter in litigation between the complainant and one or more of the defendants; and it is the constant practice of courts of chancery to' make such decrees to prevent multiplicity of suits.” For this he cites the case from 1 Sneed, with other cases, and in this case he added, that “ the fact that the defendants on whose behalf the decree is sought have been brought before the court by publication, could make no difference.” In a subsequent part of the opinion it was said, if the defendant’s heirs had renounced their claim, the defendants were at liberty to show it, and would have all the benefit of it, as upon personal service of process upon these defendants, and if these defendants fail or declined to come forward and take any benefit under the decree, it would simply enure to the benefit of their co-defendants, the property remaining in the possession of the defendants.
In this view of this case, it becomes necessary to see whether the defendant Anne E. Kautz, the minor grandchild, has been deprived of her rights in the lands of her grandfather under these proceedings. Her case is also before us on writ of error, she being still a minor. It is charged in this bill that Anne E. Kautz was in fact a citizen of Tennessee at the time of filing the original bill — a resident thereof, and so. remained for several months after said bill was filed, but no process was served on her, but publication made as in case of non-residents. The fact is, she is charged in the original bill to be a non-resident, and a guardian ad litem asked to be appointed to defend for her, she being a minor. At the October rules, after filing the bill, an order of publication was made, and due publication no doubt had. If she was in fact a resident of the State, this publication was unquestionably without authority of law, and void, and failed to make her a party to the case, — no return of not to be found being pretended as to her, as the record shows no process issued or was prayed as to this defendant, she being, as stated, in North Carolina. The answer of Moore and wife, formerly Eliza Davis,
The only other question presented in this case is, where the sale of the land is held void as to parties not legally made defendants, what shall be the result as to the purchasers, who have paid their money and the same been appropriated in the course of the administration suit?
It is settled by repeated adjudications of this court, that a purchaser in such case is entitled to be sub-rogated to the rights of creditors who were bona fide, such, and whose debts, therefore, were a charge, or might have been so made, upon the land in the hands of the heir. . .
But the question is, are these parties, who were 'not legally before the court in the administration suit, bound by the decrees in that cause ascertaining the -debts due, the same being made between the administrator and creditors alone, in a proceeding to which ■these heirs were not parties?
We think this conclnsion is so clear on principle as scarcely to need argument to support it. It is axiomatic in our jurisprudence that a party is not bound by judgment or decree unless he be a party, or privy to some one who was a party, and thus bound by reason of such privity.
We take it that it is equally axiomatic, that the-administrator only represents the personalty of an intestate, and does not represent the heir, nor can he bind his estate, nor can it be bound by him, or by proceedings against him, so as to conclude the rights of the heir, when his real estate is sought to be reached for payment of his ancestor’s debt. This is so recognized in all our statutes providing for sale of lands for the payment of the ancestor’s debts, by requiring the heir to be made a party to the proceeding, whether by sci. fa., or und® the act of 1827, sec. 2267; and if, not parties, such sales have uniformly been held void: Crippen v. Crippen, 1 Head, 128; Estes v. Johnson, 10 Hum., 223. This is specially provided for in cases of insolvent estates, whether in the county or chancery court: secs. 2338 and 2380. The latter section, for cases in chancery court, pro
In view of these settled principles, we hold that the ascertainment of the indebtedness as between, the administrator in the original case, can have no effect whatever in establishing the validity of the claims as against the heirs or the lands to them descended.
It would be an idle ceremony to declare the sale for the payment of these debts void because the heirs were not parties, and then hold that the debts were conclusively ascertained by the decrees made between the administrator and creditors were conclusive as to the debts, and such debts established as bo?ia fide debts against the land, and therefore to be immediately fixed upon the land in favor of the purchasers, as debts paid by their money bid on the purchase of the land. This would be to hold the heirs not bound by the sale because not parties to the proceeding in which it was ordered, and, at the same time, that the proceeding did bind them, notwithstanding they' were not
We therefore hold, that the purchasers will be entitled to be subrogated to the rights of creditors of the estate, to all such debts as may on investigation be shown to have been bona, fide, legal claims against the estate, and which have been discharged by appropriation of the purchase money, or to - the extent they have thus paid bona fide debts that were legal demands against the estate of their ancestor and a proper charge on their land, to be ascertained on taking (he account.
The question of liability of the administrator for rents of the land received by him, is not made ■ in complainants' bill, and therefore need not be considered. It is clear the heir is entitled to the rents until the land is sold for the ancestor's debt, as we have lately held at Nashville, but the claim of the heir would be one against the party wrongfully receiving his money, or against the occupier of his land.
The result is, the former decree in this case will be vacated, and a decree entered in accord with this
Dissenting Opinion
delivered the following dissenting opinion:
Bill to set aside sales of complainants’ lands made, under decrees of the chancery court in an insolvent case, when the complainants were infants. The chancellor granted the relief sought, and the administrator, at whose instance the sales were made, and the purchasers at the sales, appealed.
In June, 1864, Samuel W. Davis died in Greene county intestate, leaving five children — John PI. Davis, Mary Alice Davis and S. Virginia Davis, who are complainants in this bill; Eliza R. Davis, who intermarried with John Moore, and Ann E. Davis, who intermarried with W. H. Kautz, and died leaving one child, Ann E. Kautz. Moore and wife and Ann E. Kautz are defendants to this bill. In April, 1865, J. G. Reaves, also a defendant, became administrator of the estate of Samuel W. Davis, and, as such, suggested the insolvency of the estate to the county court, and filed a bill, on September 13, 1865, in the chancery court, against the heirs and creditors, to transfer the administration to that court, and sell the lands descended for the purpose of paying the debts. Such proceedings were had in that cause that the debts of
The bill contains some general charges of fraud against the administrator in connection with the insolvent bill and his management of the estate. No effort has been made to sustain these charges, and there is nothing in the record of the insolvent suit, which is introduced in evidence, which tends to show bad faith on the part of the administrator. He seems to have scrupulously accounted for the assets which came to his hands, and to have, with the aid of counsel, carefully investigated the claims presented against the estate. He was represented by counsel, and cannot be held responsible for the mode in which the suit was conducted, even if that mode, which does not appear, was in any respect a departure from the usages of the court in such cases.
If the proceedings in the insolvent suit are to be measured by the strict rules laid down by this court for the proper conduct of such cases, when objection is made in time to any other course, they are in
No fraud being shown to impeach the insolvent proceedings, either by direct proof or by the proceedings themselves, the bill before us is a pure ejectment bill. The complainants are seeking to recover the lands which descended to them from their father, upon the ground that the sales under the insolvent proceedings were void. Their bill . attacks the validity of those proceedings collaterally: Starkey v. Hammer, 1 Baxt., 441; Kindell v. Titus, 9 Heis., 727. Those proceedings come before us precisely in the same way as if an action in ejectment had been brought by the complainants for the land: Britain v. Cowen, 5 Hum., 315. In this view, the weight of authority in this State, in accord with the current of decision elsewhere, is that if the court have jurisdiction of the person
The court, in this instance, had jurisdiction of the subject matter, the administration of an insolvent estate, after the insolvency had been suggested in the county court, and the sale of lands descended for the payment of the ancestor’s debts. The only doubt is whether it had jurisdiction of the persons of the infant complainants. The insolvent bill made the present complainants parties defendant by name, together with their sister Eliza B. by the name of Louisa B., as infants without a general guardian, and citizens of the county of Greene. Ann E. Kautz was also made a defendant as an infant and non-resident of the State. The intestate had taken his family to North Carolina in March, 1864, and had returned and died in June of that year. His daughter Eliza, with one of her sisters, probably her sister Ann, the mother of Ann E. Kautz, had returned to Greene county in the summer of 1865. The other children came back, according to the testimony, in September or October of that year. The insolvent bill was filed on the 13th of
These facts leave no room for doubt that the insolvent suit was proceeded with under the belief that the infant children of the intestate were before the court, properly represented by guardian ad litem, and that their interests were looked after as well as they could be upon the supposition, manifestly entertained by all parties, that the estate was hopelessly insolvent. These facts would not, however, make the infants parties to the suit, if, in fact, they were not properly brought before the court. They merely make it the duty of the court to examine the record carefully with
The first decree rendered in the cause bears date the loth of November, 1865, and is thus commenced:
“James G. Reaves, Adm’r, v. “The Heirs of Sam’l W. Davis, dec’d, and others.
“This cause came on to be heard before his Honor the chancellor, at this term, and, therefore, upon consideration that publication was duly made as to the said heirs, and that all other proceedings required by law were had in due form and time, it is ordered, adjudged and decreed,” &c.
This decree was made before the guardian ad litem had put in the answer of the infants. After he had answered, at the May term, 1866, under the same heading, another decree is entered thus: “This cause came to be further heard before his Honor the chancellor, at the present term, upon the answer of the guardian ad litem of the said minor heirs, &c., and it is therefore ordered, adjudged and decreed by his Honor the chancellor, that all former orders and decrees in this cause, and the report of the master taken pursuant to an interlocutory order of this court, the same being unexcepted to by either party, save the matters that appear in the exceptions (of the administrator) filed thereto, be and arc hereby in all things confirmed,” &c.
It has been held by this court, in an attachment case and upon a writ of error, that the recital in a decree against a non-resident that publication had been duly made was conclusive of the fact when there was nothing in the record to contradict it: Claybrook v. Wade, 7 Cold., 556; Howard v. Jenkins, 5 Lea, 176. The same ruling has always been made when the proceedings were collaterally attacked: Kilcrease v. Blythe, 6 Hum., 378; Gilchrist v. Cannon, 1 Cold., 587; Walker v. Cottrell, 6 Baxt., 257. In this last case, the recital of the decree is said to be sufficient “unless contradicted by the record itself.” In Hopper v. Fisher, 2 Head, 254, the decree merely recited that the cause came on to be heard, before the chancellor, upon the bill and answer of the minor defendants by their guardian ad litem. In the records no subpoenas were found, nor did it appear whether any ever issued or existed, or whether the infant defendants were ever
The recital in the decree before us' is that publication had been made as to the heirs. If the bill had averred that the heirs were non-residents, the recital would have been sufficient. The heirs of the intestate had been removed to North Carolina, and, no doubt, had not returned, except Eliza, when the process was served upon the latter. By the Code, see. 4352, sub-sec. 3, personal service of process is dispensed with, when the sheriff shall make return upon any leading process that he (the defendant) is not to be found. Such a return was made in this case. By sec. 4356, the order for publication may be made at any time after the filing of the bill. Whatever may be the proper construction of these provisions as to the time of publication, we know that the publication was often made at once, upon
The rents received by the administrator were disposed of by the court in the insolvent case, and this action of the court is as conclusive on the infants as the other orders and decrees. Besides, the bill is not shaped with a view to the recovery of rents, not a word being said on the subject. The complainants having failed to recover, the heirs who are made defendants can of course take nothing, even if this be a case where they would be entitled to share in the recovery.
I am, therefore, of opinion that the decree should be reversed and the bill dismissed.