27 Miss. 610 | Miss. | 1854
delivered the opinion of the court.
First. The plaintiff’s lessor offered in evidence a certificate in the following words, in reference to a part of the lands in controversy : —
“ I, Austin Morgan, register of the land-office at Jackson, Mississippi, formerly Mount Salus, hereby certify, that Jacob Collins entered the west half of north-east quarter of section five, township seven, range three west, containing seventy-seven A*- acres, on the 7th day of September, 1835, as appears of the records of this office. Given under my hand and private seal, having no official seal.
W. of N. E. S. 5,
T. 7, R. 3, West.
Austin Morgan, [seal,] Register.
Jackson, December 1,1849.”
The defendant objected to the admission of this paper in evidence, and the court sustained the objection; and this presents the first question for consideration. We think that the objection was properly sustained. The evidence offered was neither a certificate, as contemplated by the act of 1822, Hutch. Dig. 858, nor a copy of such certificate within the act of 1837, § 2, Hutch. Dig. 869, nor a copy of a record appertaining to the land-office under the act of 1822, Hutch. Dig. 864, nor a certified copy from the books of entries in the land-office under the act of 1844, § 2, Hutch. Dig. 871. It is a mere certificate of the register that certain facts appear by the books in his office; a statement of his own conclusions from the facts stated in the books, and not a certified copy of the entry itself from the books.
The plaintiff’s lessor then stated to the court that he and the defendant both claimed title to the lands in controversy from one Jacob Collins, which was not denied, and read to the jury a deed from the sheriff of Hinds county, dated 8th of October, 1839, by which the land in controversy was sold and conveyed to one John McDonald by virtue of an execution in the said sheriff’s hands, issued on a decree in chancery against Jacob Collins, dated 8th of August, 1836. He also proved by John McDonald, that after he had purchased the lands at said sheriff’s sale, he sold them to the defendant in the year 1845, who took possession under his purchase; that the witness never had or claimed any other title than that acquired by the said sheriff’s sale, and that the defendant' never had or claimed any title or right of possession to the lands, than that derived from the witness ; which evidence was offered and admitted without objection.
The plaintiff’s lessor then offered in evidence the records of two judgments at law in Hinds circuit court, rendered 3d of December, 1838, against Jacob Collins, the executions thereon and the sheriff’s deed to Jacob F. Foute, dated 1st of November, 1839; and here rested the case as to the demise of Jacob F. Foute.
The defendant then offered in evidence a transcript of a record from the superior court of chancery, showing a decree against Jacob Collins on the.8th of August, 1836, for $15,273.52, and sundry executions thereon, including an execution issued to the sheriff of Hinds county on the 2d of September, 1839, under which he sold the land in controversy, and John McDonald became the purchaser, and the sheriff’s deed made thereupon, dated 8th of October, 1839, being the same deed previously offered in evidence by the plaintiff. The plaintiff objected ,to the admission of all this evidence, but the objection was overruled, and the evidence permitted, to go to the jury.
After the close of the evidence the following instructions, among others, were asked in behalf of the plaintiff’s lessor: —
2. That the judgment rendered 13th of December, 1838, in Hinds circuit court, under which the plaintiff’s lessor claims, did create a lien from that date upon the lands of Collins, and the levy and sale of the lands by the sheriff of Hinds county gave to the purchaser at such sale a title to the lands, superior to the title relied on by the defendant as offered to the jury.
These instructions were refused by the court; and the plaintiff’s lessor excepted thereto, and to the admission of the evidence of title above stated as offered by the defendant. The verdict and judgment being against him, he moved for a new trial, which was overruled.
The essential question, upon which the rights of the parties as they are presented for our determination in this case depend, is, whether the decree of the superior court of chancery, under which the defendant claims title, is void. And this renders it necessary to consider the nature, objects, and legal effect of the bill upon which that decree was founded.
It was filed by the heirs at law and distributees of John W. Hendricks, who died, leaving his last will and testament, in which he appointed Jacob Collins, and his widow, Anne Hendricks, his executors. The substantial statements of the bill are, that the executors made a fraudulent concealment of the money of the testator on hand at the time of his death, and of a large amount of debts due the estate, in the inventory returned by them to the probate court; that the executor and executrix purchased property of the estate at their own sale, and at a sacrifice, and should be charged with the appraised value thereof; that they made a settlement (whether final or not does not appear) with the probate court in 1824, showing due from them $1,600 or $2,000, but have refused to make distribution to - the complainants, who were entitled to it; that this account was unjust and erroneous in not charging themselves with the amount of sales, nor for interest upon moneys admitted to have
It is manifest, from this statement of the allegations and scope of the bill, that its object was to have a settlement of the accounts of the executors, and a distribution of the assets and property to the complainants. It is true that remedial process of ne exeat, injunction, &c., is prayed, but these are merely subordinate and auxiliary to the main purpose of the bill. Such process might have been granted by the chancery court, to restrain the defendant, or secure the property until the probate court could settle the executor’s accounts, and order distribu
We are constrained, therefore, to declare that the superior court of chancery had not jurisdiction of the subject-matter, and that the decree is void; and it follows that the defendant in this action can derive no title to the property in question under the decree, and the court below erred in refusing the two instructions above stated.
The judgment is reversed, and the case remanded.