83 Miss. 234 | Miss. | 1903
Lead Opinion
delivered the opinion of a majority of the court.
This is a suit by Mrs. Tansey Gibson, Lora Jones and J. B. Jones, Jr., heirs at law of E. H. Jones, .deceased, and Mrs. Kate L. Barlow, against Erancis Smith, Caldwell & Co. and their trustee, C. C. Currier, seeking to perpetually enjoin a sale of the lands in controversy under a trust deed given by O. W. and N. E. Eord on January 11, 1890, to secure $800 and interest; and also to have said trust deed canceled as a cloud upon the title of complainants. The facts are these:
On September 5, 1879, Mrs. Eliza Jones bought from Mrs. M. C. Matthews and husband about 2,700 acres of land in Copiah county for $3,300, secured by vendor’s lien. This tract included the land now in controversy. On September 10, 1880, Eliza Jones died intestate, leaving her husband, J. B. Jones, tenant by the curtesy, and Eugene H. Jones and Willie Jones, a minor, as her children and heirs. On November 25, 1882, Mrs. M. O. Matthews filed a bill to foreclose the vendor’s lien reserved in her deed to Eliza J ones, making J. B. Jones, Eugene H. Jones and Willie Jones defendants thereto; this suit being numbered 1,164 on the docket. Einal decree ordering ’sale to satisfy amount due (i. e., $3,850) and costs was in time rendered, the lands were sold and bought in by M. O. Matthews for
Eugene BE. Jones died intestate in 1889, leaving complainants, Tansey Gibson, Lora and J. B. Jones, Jr., as his heirs. J. B. Jones, the husband of Eliza Jones, died in April,
This court decided in J. P. Matthews v. J. B., Eugene H. and Joseph W. Jones, 4 South, 547, that the decree of the chancery
In pursuance of this statement, as shown in tbe statement of facts given above, all effort by tbe complainant in tbat cause to subject tbe interest of said minor in tbe lands now in controversy was abandoned. Years afterwards, when Mrs. Barlow bad become tbe owner of tbis minor’s interest aforesaid, this present bill was filed, and tbe answer thereto was made a cross-bill; and in tbis cross-bill tbe prayer is, in part, tbat at tbis late day tbe court, at tbe instance of those who were entire strangers to tbe original suit to foreclose, should allow these strangers to have tbe process amended so as to show tbat said minor, Joe Willie
Counsel for appellants insist that whether the court had jurisdiction depended upon the fact of service, and not upon the recitation of that fact. If that was a correct statement, as an abstract legal proposition, it no way helps appellants. Bor the fact is here that the father was not served as father, but simply as a co-defendant. Another fact is that nowhere was it shown that there was no guardian, no mother or father. The amendment, to avail anything, must necessarily have gone far beyond the prayer for amendment, and have shown not only that the person served was the father, but also that there was no guardian in this state. In truth, the prayer was in effect, to amend the process, as well as the return. It was properly refused.
Before passing from this point, we call attention to the fact that the case of McIlvoy v. Alsop, supra, has been clearly overruled by the case of Erwin v. Carson, 54 Miss., 284. So far as the holding in the former that it is enough, when serving a minor who has no father or guardian in the state, when the mother is a co-defendant, to hand the minor a copy, and the mother a copy, not as mother, and part of service on the minor, but as a co-defendant, the court, carelessly enough, observes that “it would have been an idle ceremony to have given the mother two copies.” How can that which is a condition of jurisdiction
There is nothing in the plea of the statute of limitations. The purchase money was not paid. Mrs. Matthews paid no purchase money, did not even credit her bid ($264) on the decree, and did not take possession of the land. L. H. Matthews’ testimony shows this. She conveyed to J. E. J ones the day of the purchase, taking his notes. He never paid anything. J. B. Jones on same day conveyed, for $5,500, to Mrs. N. E. Eord, taking her notes. A decree was rendered January 7, 1888, for $3,097, amount of balance of vendor’s lien, against J. B. Jones, but no effort was ever made to enforce it, because of the reversal of the original decree by the supreme court. The law is imperative in requiring actual payment. No subterfuge or sham payment will do.
Mrs. Barlow is not connected by any testimony with the facts which are claimed to estop her husband. We think there is no merit in the cross-appeal. So far as Mrs. Eord’s good faith is concerned, she knew, through her attorneys, all that was in the record, or ought to have known; and, besides, this statute of limitations does not mean the good faith of a purchaser from a purchaser. Jeffries v. Dowdle, 61 Miss., 504.
Affirmed on appeal and cross-appeal.
Dissenting Opinion
delivered the following dissenting opinion.
I dissent from the affirmance on the cross-appeal, and now give my view of the law and facts. The facts I state are undisputed.
On September 5, 1879, Mrs. Matthews conveyed the land in controversy, together with other land, to Mrs. Eliza Jones, for $3,300, on credit; the notes for the purchase price bearing ten per cent interest per annum after January 1, 1880. Mrs. Jones, the purchaser, died intestate on September 10, 1880, before the Code of 1880 became the law. Thereupon her husband, J. B. Jones, took the land for life as tenant by the curtesy; and her two children and only heirs, Eugene H. and J. W. J ones, became the owners of the fee, subject to this life tenancy, and they all three held subject to the vendor’s lien held by Mrs. Matthews. On November 25, 1882, Mrs. Matthews filed her bill in chancery to enforce her lien, making the surviving husband and two children parties defendant. Of these children, J. W. Jones was a minor. Process was duly issued and served on all three of the defendants, but served on all, as if all were adults; and the record nowhere shows that J. B. Jones was the father, as he in fact was, of the minor, J. W. Jones. In the proceeding, however, on motion of Mrs; Matthews, the complainant, a guardian ad litem, was appointed for the minor, who made answer for him, pro confesso was taken against the adults, and final decree rendered for sale of the land to pay the lien notes; and accordingly sale was made by a commissioner to Mrs. Matthews, the complainant, and this sale was duly confirmed. On April 10, 1883, the commissioner conveyed all the land to Mrs, Matthews, the purchaser, and on that same day Mrs. Matthews conveyed all the land to J. B. Jones, and on the same day J. B. Jones conveyed the 720 acres (being part of it), which are the subject of the controversy now before us, to Mrs. N. E. Eord for $1,000 cash, and $4,500 in deferred payments, which were given .to Mrs. Matthews as collateral to secure the debt to her from J. B. Jones for the purchase money. There is no pretense that there
The decree is right as to the interest of Eugene H. Jones, and wrong as to the other, in my opinion. There is no ground for ■ distinction between the two. The principle which sustains the title of Mrs. Ford, and which sustains the deed of trust she gave as to the share of Eugene H. Jones, is that the reversal of the decree after the purchase by Mrs. Ford did not affect her rights, nor those derived from her. The same principle applies as well to the half interest of J. W. Jones, the former minor, on account of the defective service of summons on whom the decree was reversed. In fact, the minor was duly served with summons, and so was his father, J. B. Jones, and the court had jurisdie
I think tbis case should be affirmed on direct appeal, reversed on cross-appeal, and decree here dissolving tbe injunction in toto, dismissing tbe original and amended bills, and for $100, tbe agreed attorney’s fee on dissolution of tbe injunction, and all costs in tbis court and tbe court below to be taxed against appellants and cross-appellees.