Friley v. Hendricks

27 Miss. 412 | Miss. | 1854

Mr. Justice Handy

delivered the opinion of the court.

This was a bill of review filed by the plaintiffs in error against the defendant in error on the chancery side of the circuit court of Yazoo county, under the following circumstances.

The bill alleges that in 1843, one Samuel H. Dinkins filed his bill in the same court against the appellants, who are the heirs and representatives of one James Friley, deceased, alleging that the deceased was indebted to him, and a judgment had been recovered against his administrators, and a balance was due thereon of about $200 ; that his personal estate was exhausted, and that his administrators refused to procure an order to sell certain real estate of which he died seized, to pay his debts, and praying.that the administrators shall be decreed to pay the balance due Dinkins, or in default thereof, that the intestate’s lands should be sold for that purpose; that at the May term, 1844, a decree was rendered and enrolled, ordering the sale of so much of the lands as was necessary to pay the debt, unless the same shall be paid within sixty days, and appointing a commissioner to make the sale; that the commissioner departed from the directions of the decree in selling all the lands together for a sum nearly four times as much as the amount to be paid, which is now alleged to be error; that the sale was reported and regularly confirmed by the court.

The grounds of error relied on in the bill of review are, first, that no day was given to such of the defendants to the bill and complainants in the bill of review as are therein shown to have been infants, to show cause after they became of age against the decree; second, that it was error to confirm the report of sale, as the commissioner sold more than enough of the land to pay the debt decreed; third, that the court had no jurisdiction of the case, and the decree is void.

The bill further states that Dinkins subsequently died, and that administration of his estate was granted to one Chambers, who made his final settlement, and was discharged before the bill of review was filed. Further, that they have discovered since the above decree was rendered from the records of the probate court, in relation to the estate of the deceased Friley, that the assets of his personal estate had not been exhausted, and were sufficient to pay the claim of Dinkins, which discovery has been made within two years before the filing of the bill of review.

The defendant Hendricks is the only party made a defendant to the bill of review, he being the purchaser of the land at the commissioner’s sale. The bill offers to refund to him the purchase-money paid by him with interest, and prays that thereupon the sale may be set aside or reconveyance decreed, and that the original decree may be reviewed and reversed.

To this, the defendant filed a general demurrer, which was sustained in the court and the bill dismissed, from which the case is brought here.

A preliminary objection to the bill of review is raised here under the demurrer, which is decisive of the case. This is, that the bill does not make the complainant in the decree sought to be reversed, or his representatives, parties to the proceeding.

The legal object and effect of a bill of review being to have the decree examined and reversed, it was formerly held to lie only against those who were parties to the original bill. 3 Ch. R. 94; Lubi, Eq. PL 129, in analogy to a proceeding in error. It was afterwards extended so as to embrace other parties in interest. Still it is held to be indispensable that all the parties to the original decree should be included. Bank of the United States v. White, 8 Peters, 268; Story, Eq. Pl. § 420. And if they are dead, their representatives must be made parties, as in other proceedings in error. The reason of this is manifest, that the proceeding being in its nature one to reverse the original decree, it would be inequitable to entertain such case without giving the party in whose favor the decree was rendered an opportunity to justify it. This being a technical bill of review, must fall by the application of this principle.

Nor is the objection obviated by taking the ground that the bill does not seek to disturb the rights of the complainant under the original decree; for that position deprives it of its essential character, and leaves it no ground to stand on. It changes its character from a bill of review, which its whole structure and object assume it to be, to that of an original bill for relief against Plendricks, the purchaser of the property sold under the decree. Viewed in the latter aspect, the mere reversal of the decree for the errors alleged in the bill, would not divest the rights of the purchaser, who was neither a party or privy to the decree, and against whose equity no just charge is made. And so far as the decree and proceedings under it are alleged to be void for want of jurisdiction, we remark, first, that if that be true, the complainants’ title to the land is not affected by the decree, and they have, for aught that appears, an ample remedy at law to recover it, and this bill shows no ground for relief in equity, regarding it as a bill for general relief against Plendricks; and, second, regarding it as a bill of review on the ground of want of jurisdiction in the chancery court, the objection is suicidal ; for if there was no jurisdiction to render the original decree, there is no jurisdiction to review and reverse it.

The decree is, therefore, affirmed.