45 So. 311 | Miss. | 1907
Lead Opinion
delivered the opinion of the court.
At the May term of the circuit court of Leake county, B. B. Bobbitt et al., brought an action of ejectment against J. L. Jordan to recover possession of the tract of land in controversy. This declaration was filed on the 19th day of December, 1905, and plaintiffs allege in the declaration that their right to the
The facts are as follows: The common source of title is A. I. Bobbitt, the ancestor of plaintiffs. Mr. Bobbitt died in October, 1861, and at the date of his death he owned the land in controversy. When he died he left a widow, Mrs. Mary E. Bohbitt, and five children. One of these children, Alfonso Bobbitt, died young without heirs, and the other four children were the plaintiffs in this case in the court below. Shortly after the death of A. I. Bobbitt, his widow was appointed administratrix, and John A. Hanson was appointed administrator of the estate. It is shown that Hanson served as administrator until March, 1873. Some two or three years after the death of A. I. Bobbitt, his widow, Mrs. Mary E. Bohbitt, married one II. A. Middleton. In 1864, Bobbitt’s widow, then Mrs. Middleton, procured from the probate court of Leake county an allotment of her dower. This allotment of dower included the lands in controversy. In December, 1867, Mrs. Middleton conveyed the dower land to one W. B. Mann. In 1867, the administrator, John A. Hanson, petitioned the probate court to declare the estate of A. I. Bobhitt insolvent and to authorize him to sell the real property belonging to the estate for the purpose of paying the debts. It seems that this petition did not embrace the dower lands. On October 14, 1867, the probate court made an order directing the sale of the lands as prayed for. This order to sell was never executed. It seems that nothing more was done in this matter until the year 1871,-ten years after the death of Bobbitt, when Hanson, who was still the administrator, presented another petition to the court calling attention to the fact that the court had previously de
Counsel for appellee introduced no testimony impeaching the good faith of the sale. Nowhere in this record does it appear that any witness has taken the stand to testify that the sale was not made in good faith, and the purchase money paid. Appellees rely solely upon the record to prove this, and rely upon it to impeach the good faith of this transaction and set aside this sale, for there is no hint by any witness who has taken the stand, or been introduced on either side, that this
The rights of the parties must be determined under the law as it stood under the Code of 1871, since all the statutes prescribing the limitation period applicable to all property sold by order of the chancery court (that is to say, § 2693, Code 1880, § 2760, Code 1892, and § 3122, Code 1906) are expressly made to apply prospectively (that is, to sales hereafter made leaving unaffected the period of limitation in operation at the date of any sale ordered by the court). The sole question in this case is whether or not, under § 2173 of the Code of 1871, the statute of limitations bars the heirs from availing themselves of the invalidity of the decree of sale, when, as a matter of fact, at the date of sale they could not have instituted suit to recover this land. Section 2173 of the Code of 1871 provides as fol
The question is Avhether or not the one year’s statute of limitations, provided by § 2173 of the Code of 1871, has any application to the case of a remainderman. This question was settled by the case of Morgan v. Hazlehurst Lodge, 53 Miss., 665. In that case, the court says, on page 681: “ It is impossible to suppose that the statute of 1871 intended to cut off the right of the heir to the land, unless there Avas some person in possession against whom he might bring the action. . . . In such a case, the heir would not lose his right of action until the vendee of the administrator entered or asserted such owner
In the case of Hall v. Wells, 54 Miss., 297, the court begins its opinion by the statement that “ we adhere to the views expressed in Morgan v. Hazlehurst Lodge, 53 Miss., 665.” In Morgan v. Hazlehurst Lodge, supra, on page 682, Judge Simraix, delivering the opinion of the court, says: “ The statute is remedial and curative, has its origin in that policy, and, if the words will admit it, should receive that construction which
Keeping in mind that this statute is a statute of repose, and that it should not be so strictly construed as to defeat the object aimed at, and we have a true key to its correct interpretation. What is the object aimed it? It can be stated in no better language than is stated in the case of Hall v. Wells: “It originated in the known fact that a very large proportion of the sales of property by virtue of the orders of probate courts were void, from various causes, and, as insecurity of title to property is a great public evil, it was determined to provide a short statute of limitations applicable to all cases falling within the existing evil; and the section under review contains the provision to remedy it.” The case before the court now is one of sale by order of the probate court, falls literally within “the existing evil,” and the one year’s statute is applicable
The case of Clay v. Field, 115 U. S., 260, 6 Sup. Ct., 36, 29 L. Ed., 315, has no sort of application to the case under consideration, for the reason that the court states in its opinion that “ the court before which the case was tried expressly found that no money was ever paid on the bid, and no credit was ever entered upon the probated indebtedness.” Of course, under these facts, the statute did not apply, because the condition under which it is provided by the statute that the one-year statute may create a bar to a suit to recover land sold by order of the probate court did not exist, because, as the court says, the purchase money was not paid; but that is not the case here. There is nothing in this record which goes to show that the sale was not made in good faith, and the purchase money paid. Not a witness has been put upon the stand to deny these propositions, and if it be held that this sale was not in good faith, and the purchase money was not paid, it must be so held on the face of the record, let us see what the record shows: It shows that an application was made by the administrator to the court for the sale of this property to pay the debts. It contains
In the case of Shannon v. Summers, 86 Miss., 619, 38 South., 345, in the opinion of the court to be found on page 629 of 86 Miss., page 347 of 38 South., the decision of the court held that this statute did not apply, and the court said: “ The burden is on the purchaser to show that the sale was made in good faith. That burden was not met in this case. It is evident from the testimony of Herron, the administrator, and of Bowland, purchaser, that the latter in purchasing the land acted as agent for the former, who was to take the lands off his hands, and that while the administrator, who owed all the debts chargeable against the estate, gave the estate credit by the amount of Howland’s bid for the land, yet Howland never paid Herron, either as administrator or otherwise, the amount of his bid.” It will be seen in this case that the reason for holding that the statute did not apply was because of the proven fraud of the administrator and purchaser in collusion with each other, and the failure to pay the purchase money. Hpon an examination of all the cases upon this subject, we find no ease which has ever held that defects and irregularities, appearing in the record, may alone be relied upon to show the bad faith of the sale, when there is nothing else in the record to prove it, and no testimony introduced by the party assaulting the sale which 'would tend to impeach it. The statute was designed for the express purpose of curing these very things, and to hold that they, in themselves, could furnish the proof to impeach the sale, would be to destroy and nullify the statute. There is no contention by anybody that this sale was a valid sale; but, as repeatedly held by this court, for the statute to become effective, it is not necessary that there should have been a valid sale. Indeed, if there was a valid sale there wouM have been no need for the statute. The purpose of the statute is to render unassailable, after one year from the date of sale, the title to any property sold by order of the probate court. In order for
It may be conceded that the sale by the administrator was for debts barred by the statute of limitations, and that there was no proper notice served on the heirs, and that the sale was void; but all these things do not prevent the one-year statute of limitations from applying, because, however irregular and defective the proceedings leading up to the sale, still the court had jurisdiction of the administration, and the sale was made by order of the probate court. No act or irregularity of the administration can prevent the statute from running in favor of a purchaser who has paid the purchase money in good faith, unless he has participated in the wrongdoing of the administrator.
The purchaser is not required to examine the proceedings, or petition leading up to the sale. This is expressly held in the ease of Toll v. Wright, 37 Mich., in part of opinion rendered by Judge Coobey, to be found on page 100. We can do no better than quote, in support of our own views, a part of the opinion of Ju'dge Coobey in' construing a statute similar to ours, and sustaining our view, wherein he says, on page 101: “What, then, is the meaning of the statute when it speaks of sales ‘by an executor'or administrator under the provisions of this chapter ’ ? It certainly does not mean valid sales, for those need no protection. Neither can it mean sales lawfully ordered, for it makes no mention of any order, and speaks of sales only. Neither can it mean sales in which the statute has in all important particulars been followed, for the manifest
It is contended that it was the duty of the administrator to plead the statute of limitations, and Nutt v. Brandon, 85 Miss., 702, 38 South., 104, and Sivley v. Summers, 57 Miss., 712, are cited in support of the proposition. We concede the correctness of the statement, but do not see how this can have bearing on this , case, or prevent the one-year statute from applying. The administrator did not plead it, and the sale was made by order of the probate court, and the statute applies to all sales of property by order of the probate court, whether they be valid or invalid, nor does it matter under what circumstances the sale was made. As already stated, the design of the statute is to make perfect an imperfect title, acquired under a sale by the probate court, one year after the date of the sale, or one year after the date to which the parties may have instituted a suit for the recovery thereof. The case of Kessinger v. Wilson, 53 Ark., 400, 14 S. W., 96, 22 Am St.
Reversed and remanded.
Concurrence Opinion
delivered the following concurring opinion:
If everything had been regular and complete, Mann would have had the title by his purchase under the decree of sale, and so, now appellant, who claims under him, would have it. The widow of A. I. Bobbitt died in June, 1904, and his heirs, her children, brought this action December 19, 1905, more than a year after her death. The right of appellant depends on § 2113 of the Code of 1811, which bars action against purchaser at probate or chancery sales “ where the sale is in good faith and the purchase money paid, unless brought within one year after such sale.” Dor the reason that, at the date of the sale, the vendee of the widow was in possession and owner of her dower life estate, no action could be brought at law to recover it by the heirs in remainder until she died. As soon as she died, the one-year limitation of the section began to run in favor of the purchaser of the fee at the sale and his grantees, as is fully shown in- Morgan v. Hazlehurst Lodge, 53 Miss., on pages 681 and 682. It is sufficiently shown by the record that the purchase money was paid by the bidder at the chancery sale. The deed to him by the administrator, more than thirty years before the action, shows its receipt, and the report of sale to the court shows that it was paid, and the administrator charges himself with it, and it went into the estate protected by the administrator’s bond. If this is not a prima facie case after thirty-two years, none could be made. There is no hint of bad faith on the part of the administrator. If there was, it could not, without collusion, affect the purchaser who was the highest bidder and paid his money. Sanders v. Sorrell, 65 Miss., 288, 3 South., 661; Summers v. Brady, 56 Miss., 11; Hiller v. Jones, 66 Miss., 636, 6 South., 465. However defective the administration proceedings may be, before or after the sale, the section cures all defects (Morgan v. Hazlehurst Lodge, 53 Miss., 665; Bradley v. Villere, 66 Miss., 399, 6 South., 208), and so the lack of a decree of confirmation is of no avail.
It is not proper, as appellees want, to add to § 2173 the words “ but this shall not apply to sales of reversionary interests.” This would be rank judicial legislation. Under the statutes, there was the same power to sell reversions as present interests, and, the power existing, the statute applies, to commence as soon as the right of action accrues, free from the legal prohibition to sue. The design of the law was to encourage buyers under decrees of sale. Beally the statement of the case carries with it its own irresistible argument. Suppose the
The case of Kessinger v. Wilson, 53 Ark., 400, 14 S. W., 96, 22 Am. St. Rep., 220, as to when the one-year statute begins .to run, is too isolated and too often demolished to furnish standing ground to appellees. This will appear from the opinion in chief of Judge Mayes and its references, especially the note to Waln v. Sherman, 11 Am. Dec., 624, and its citations and the note to Kessinger v. Wilson, 22 Am. St. Rep., 228, and its citations.
Dissenting Opinion
delivered the following’ dissenting opinion.
A. I. Bobbitt died October 3, 1861. He owned the eighty acres in controversy at the time of his death. He left a widow, Mary E. Bobbitt, who, about three years later, married II. A. Middleton. He also left five children, these four plaintiffs, appellees here, and Alfonso Bobbitt, who died young without heirs. About twelve days after the death of A. I. Bobbitt, his widow was appointed administratrix, and John A. Hanson was appointed administrator of his estate. Hanson served continuously until March, 1873. In 1864, Bobbitt’s widow, Mrs. Mary E. Middleton, petitioned the probate court of Leake county for an allotment of her dower. Her petition was granted, and in July of that year the final order was made by the probate judge, Jas. W. Wilder, approving the report of the commissioners and setting apart the dower of the widow which
From this brief statement of the case made by this record, it will be seen that this is an action of ejectment brought hy the heirs of Bobbitt to recover as reversioners the eighty acres of land comprising the homestead of their father pretended to have been sold by the administrator in November, 1873, to W. B. Mann. W. B. Maun did not go into possession of this land under the deed made hy Raymond Reid, administrator, November 3, 1873. It is perfectly clear and not denied that Mann went into possession of this eighty acres on December 6, 1867, under a deed made by Bobbitt’s widow, then Mrs. Middleton, and Middleton, her then husband, whereby they conveyed the dower interest in these eighty acres which had been set apart as dower to Mrs. Bobbitt, then Mrs. Middleton, to W. B. Mann. It is extremely important to keep distinctly in mind the fact that W. B. Mann went into possession under this deed conveying the dower interest, and that his possession is referable to that deed alone until the death of Mrs. Bobhitt, afterwards Mrs. Middleton, in June, 1904. Mann’s possession was, of course, not adverse up to June, 1904, to the heirs of Bobbitt, the plaintiffs here. They were reversioners. They
The sole ground on which there can be any possible hope of reversing this judgment is that § 2173 of the Code of 1871 barred the plaintiffs. That section is in these words: “ § 2173. No action shall be brought to recover any property heretofore sold by any administrator, executor, or guardian by virtue of the order of any probate court in this state on the ground of the invalidity of such sale, unless such action be commenced within one year after this chapter shall take effect, if such sale shall have been made in good faith and the purchase money paid; nor shall any action be brought to recover land or other property hereafter sold by order of
Another reason pointed out hy Judge Simraxi,, page 679, showing that this statute created a bar intended to take effect from the time of sale, is his language, as follows: “ The statute proposed to cure the evil by applying a short limitation, where the sale was free from fraud, and the purchaser in good faith had paid his money, so that, if the purchaser lost his land, he might indemnify himself in some mode or other.” He plainly means to say that the purchaser may indemnify himself at once, when the facts are all fresh, and the situation such that the status quo, ante the sale, may be restored. This restoration of the status quo, ante the sale, could nearly always be accomplished where the party seeking to set aside the sale was required to sue within the year after the sale; but it would be farcical to say that such status quo could be restored more than thirty years after the sale. The court expressly holds that, in such case, the heir is not barred by § 2173; in other words, 'that § 2173, which provided that the action must have been brought, as to past sales, within one year from October 1, 1871, had no application whatever to a suit by the heirs where the purchaser at the probate sale was not in adverse possession so that he could be sued; and to hold that was also to squarely hold that, as to future sales made by the chancery court, § 2173 had no possible application to
What was the purpose and object of this § 2173 ? It was a statute intended to give repose to titles acquired at the sales named in it, by compelling all persons who had a right of action, when the sale took place, to challenge the validity of such sale within one year from the date of such sale, and not afterwards. So harsh and peremptory was the time limited that it was immediately changed in the next Code to two years, two years from possession taken by the purchaser, and the law is that to-day. But notwithstanding its harshness, as against persons under disability — minors and lunatics — ■ who nevertheless did have a present right of action, and could have sued within the year, the minor by his next friend or guardian, and the lunatic by his guardian or committee, that, as much as infants and lunatics might justly have complained of the extreme rigor of this statute as to them, they certainly could not complain on the ground that reversioners can complain, that they did not have a present right of action at the date of the sale. Section 2173, as interpreted by this court,
This court now feels no hesitaney, on the contrary, in applying this section to bar reversioners, who not only had no right of action when the sale was made, but none as against those claiming under W. B. Mann, who never held one hour’s adverse possession since possession taken under the widow’s deed conveying her dower, until the death of the mother in 1904. Under the present interpretation of this statute, neither the fact that reversioners had no right to bring a suit to recover the land, nor the added fact that there was no person in possession of this land holding adversely to them in direct subordination to their right, can avail these unfortunate reversioners; whereas, in bright contrast to this, the court held, in Morgan v. Hazlehurst Lodge, that, notwithstanding the statute said the suit should be brought within one year from
It is idle to talk about Fox v. Coon, 64 Miss., 465, 1 South., 629, having any pertinency here. In truth, the only thing held in Fox v. Coon was that, inasmuch as the tax deed purported to convey the whole fee, when the interest conveyed should have been limited to the interest that might rightfully pass by the conveyance, the.deed should be reformed to that extent. In other words, that under that bill the deeds might be reformed so as not to remain a cloud upon the title of the reversioners. Whether that bill, in that case resulting in a decree to that precise extent, and no more, might have been filed by reversioners before the falling in of the life estate, is utterly immaterial in this case, since this is no bill in equity, but an action, by the heirs, in ejectment to recover the land. This court expressly said, in Morgan v. Hazlehurst Lodge, supra, that the kind of action referred to in § 2173 was an action of ejectment for land, or detinue or replevin •for personal property. That is the express and emphatic declaration of Judge Simrall. How idle is it now, then, to talk about the suit mentioned in § 2173 being a bill to cancel clouds ? Section 2173 had nothing in the world to do with bills filed to cancel clouds. Those suits were governed by another statute of limitations thoroughly familiar. But if the reversioners might, within the year limited by that statute, file a bill to cancel clouds, what on earth has that to do with the inquiry here, as to whether this section, relating alone to ejectment, or detinue or replevin, or like possessory actions, to recover the possession of the land, or personal property, can be applied in an ejectment suit against reversioners who never had a cause of action until thirty years after the sale ?
It is further to be noted that in Morgan v. Hazlehurst Lodge the sale was confirmed. Here the sale never was confirmed. The administrator, instead of reporting the sale at once to
It is not possible for the human mind to conceive of a decision more directly in point, and more conclusive and decisive of the controversy in this case. The Legislature did not have to say, in § 2113, “ except as against reversioners,” as intimated in the concurring opinion in this case. The Legislature lmew that reversioners had no present right of action, and they were not dreamed of as embraced within this
It is wholly unnecessary, legislatively, to declare what the courts must know. It is a curious feature of the case of Kessinger v. Wilson, 53 Ark., 400, 14 S. W., 96, 22 Am. St. Rep., 220, that it shows that the supreme court of Pennsylvania held, just as this court held in Morgan v. Hazlehurst Lodge, that this sort of statute would not be applied against one even who had a present right of action, in an action of ejectment, unless there was some defendant in possession to be sued, and that in such case the Legislature meant to extend the time to one who might presently have sued, so as to give him one year from possession taken by a defendant who could be sued. In other words, the Pennsylvania supreme court follow the liberal view announced by Judge Simrall for this court, even in the case of those who had a present right of
But if this statute were applicable, the same result must necessarily follow, since the proof that the purchase money was paid is utterly inadequate as expressly adjudicated in Clay v. Field, 115 U. S., 261, 262, 6 Sup. Ct., 36, 29 L. Ed., 375. In that case the administrator gave a deed, which recited the payment of the consideration money, and there was also a receipt given for the amount of the bid; but-.there was no credit entered upon the. probated indebtedness. There must manifestly have been, in that case, a report of the sale reciting the payment of the consideration money, and yet that great
The two cases are identical so far as the payment of the purchase money is concerned, except that in the Field Case the sale was confirmed, and in this case there never, was any confirmation of the sale. In the Field Case, the precise point, held in the court below and. affirmed by the United States supreme court, was that the recital in the deed of the administrator and in his report of sale, in a case, too, where the sale was confirmed, that the purchase money had been paid, is not sufficient evidence to meet the burden on the part of the purchaser that the purchase money had been paid; and the supreme court of the United States expressly added that to hold that
The learned counsel representing the appellant in the oral argument devoted a large part of that argument to the contention that although, as.he conceded, all debts appeared to be barred on the face of this record, and there was no other evidence than the record, yet that it had been decided in the case of Byrd v. Wells, 40 Miss., 711, that the administrator could revive and keep alive debts of a decedent not barred at the time of decedent’s death; and that case did so hold ;• but the learned counsel seem to have overlooked the case of Huntington v. Bobbitt’s Heirs, 46 Miss., 528, decided by this court at the April term, 1872, which overrules Byrd v. Wells and establishes the direct contrary of that case, and establishes' it
But, again, there is not a particle of evidence offered in this case by appellants to show that the sale was made in good faith. On the contrary, the facts of record show, to my mind, a clear case of bad faith. There were three petitions filed to sell this land by the first administrator,'Hanson, under none of which was it ever sold, and this action on Hanson’s part extended over a period of eleven years. It was finally sold by the second administrator, Reid, on a petition — the fourth — filed by him, over twelve years after the appointment of the first administrator when he knew from the Huntington v. Bobbitt’s Heirs Case, in 46th Miss., that the debts were all barred. It certainly needs no citation of authority to show that an estate, if it is to be declared insolvent at all, 'should be so declared within some reasonably short time, eighteen months to two years at the furthest in ordinary cases, and it would be absurd to insist that a period of twelve years from the date of the appointment of the administrator, unexplained, was not a period so long as to charge the administrator with criminal negligence and gross fraud in the administration of the estate. Every debt was barred long before the sale, and yet the administrator unblushingly files a petition to sell the land for the payment of debts, when he knew no debts existed, and when it was his duty to have pleaded the statute of limitations, instead of getting up a fraudulent sale of the land to pay debts that did not exist. It is said in Morgan v. Hazlehurst Lodge, at page 683, that: “ The purchaser must bid on the property and pay his money on 'the faith and confidence that the sale will pass the title which the decedent had. If he knows that the judicial proceedings are fatally defective, or that the administrator has not conformed to the
Let us summarize, once for all, the facts showing that this sale was fraudulently made, and remember that this proof was made by the purchaser himself, and that it is all the evidence the record shows on the subject. Eirst, these proceedings show that there never was a valid decree of insolvency, for two reasons: Eirst, because there was no notice given to the heirs; and, second, there were no debts in existence to pay; that the final order for the sale of the land was made about twelve years after the death of the intestate; that this order
I have read, with great care, the supplemental brief of learned counsel who presented this case orally to the court for the appellants. More than half of the argument of that counsel, than whom there is no greater lawyer in this country, was devoted to an effort to show that these debts were not barred under the authority of Byrd v. Wells; but after the production of Huntington v. Bobbitt’s Heirs, in 46 Miss., 528,
Some sort of reference is made to § 2174 of the Code of 1871 as having application here. The bare reading of the section dispels any such pretension utterly. That section applies the same statute of limitations to equity and law actions brought for the “ same cause.” Neither in equity, nor at law, could
I propose now to notice briefly some of the remarkable propositions set out in the opinion of the majority in this case. There are some things which the majority opinion concedes: (1) That the sale was absolutely null and void; (2) that it was so void for the want of notice to the parties,; void, in other words, for want of jurisdiction; and (3) that there is nothing in the letter of the statute applying this bar to a case of this sort. Let us now notice some of its statements. It is said, in the course of the opinion of the majority, that: “ Counsel for appellee introduce no testimony impeaching the good faith of the sale. Nowhere in this record does it appear that any witness has taken the stand to testify that the sale was not made in good faith, and the purchase money paid.” Expressions similar to this on these particular points are scattered, indifferently, through the opinion from time to time. The whole argument of the opinion proceeds upon the assumption that the appellees, the owners of the land, had upon them the burden of proof that the sale was made in bad faith, and that the purchase money was not paid. That is the plain and obvious deduction from the whole course of reasoning in the opinion on this subject. The theory seems to be that the purchaser can fold his hands, and remain passive, and claim the benefit of this statute, simply because the heirs do not put a witness on the stand after the lapse of thirty years to prove that the sale was not made in good faith, and that
The next proposition I refer to, in the opinion of the majority, is this: They say that, “when,a decree of insolvency was made, and the property ordered to be sold for the payment of the debts, the debts propounded seemed to be barred, but, at
But we come now to a still more remarkable attitude óf the court on this subject. The court gravely asks this question in the course of its opinion: “ Is the statute to be destroyed in every case where there is an outstanding estate, either in curtesy, dower, or for a term of years, or must the party having the right to sue bring suit within one year after the termination of the outstanding estate in a case where the purchaser of the reversion at the sale takes possession and commences to hold under the title acquired at the sale ? In such a case, where the sale is made by virtue of an order of the court, is the one-year statute to be applied from the date at which the right to bring a suit accrues ? ” And, again, further on, the court says: “ The
I pass from this to another proposition, and that is this: The absolute impossibility of determining whether the majority of the court mean to hold that § 2173 is a curative statute or not. In one case it is pronounced a mere statute of limitations; in another it is called both a remedial and a curative statute, and quotations are made indiscriminately from Hall v. Wells, 54 Miss., 289, and Morgan v. Hazlehurst Lodge. I confess myself unable to comprehend which view the. majority opinion is intended to announce on this subject; but, whatever it is intended to announce, there is no uncertainty as to what this court intended to announce in Hall v. Wells, to-wit, that it is a statute of limitations pure and simple.
Another most astounding proposition to my mind is the citation of the case of Bradley v. Villere, 66 Miss., 399, 6 South., 208, which held that § 2173 of the Code of 1871 applied as well to sales made in disregard of the Constitution as to those in violation of statutes. This doctrine has been repudiated in a dozen cases within the last ten years. It certainly needs no argument to show, since the decision of Hawkins v. Mangum, where by Brother Calhoun said, in 78 Miss., 97, 28 South., 872 (and in at least a dozen other decisions to the same effect), that no sale which violated the Constitution could ever be protected by any statute of limitations, that no statute of limitations was ever intended to apply to a sale void for unconstitutional reasons.
But the most remarkable and incomprehensible announcement of the majority is contained in this quotation: They say that their position “ is made more apparent on reading § 2170 of the Code of 1871, which provides that: ‘ When any person shall be prohibited by law or restrained or enjoined by the order, decree, or process of any court in this state from commencing or prosecuting any action or remedy, the time during which such person shall be prohibited, enjoined, or restrained
I pass to another proposition: The court actually say that the proposition in this case whether this section has any application to the right of reversioners to sue is not res nova. I assert that it is emphatically res nova. Morgan v. Hazlehurst Lodge has nothing in the world to do with this proposition, and nothing in that case had the remotest reference to an action by reversioners under this § 2173. I do not overrule Morgan v. Hazlehurst Lodge, as the court says my view would do. I put Morgan v. Hazlehurst Lodge on the facts of that case, while the court wrest language used in Morgan v. Hazlehurst Lodge, and apply that language in a way never dreamed of by the writer of that opinion, as shown by his own language in the construction of § 2173 and of the act of 1844 out of which it grew.
Again, the court say: “ It is true that the burden of proof rested upon those who claimed under this sale to show that the sale was made in good faith, and the purchase money paid; but they make out a prima facie case by the production of the record of the administrator showing a sale, a purchase, and the payment of the purchase price.” Now, there are three things here said to be shown which I respectfully submit are not shown at all. I insist that it is not shown that there was any sale. There was a sale without power to make it, because there were no debts, and there was no notice; just as if there had been no
Again, the court say: “ Bad faith cannot be argued from the mere fact that proceedings leading up to the sale were irregular, and such as to create a void sale.” Here, again, the court is wobbling, and again talks about the irregularity of the sale and the creation of a void sale. If the sale was void, let us have, it void, and quit talking about this irregularity, and especially let us recognize the plain fact that it was a sale void, as the majority admit, because the decree was without notice, and therefore without jurisdiction; and most especially let us remember that it was void also because the probate court had no power to order a sale to pay debts, when there were no debts to be paid.
Again, the court say: “ It may be conceded that the sale by the administrator was void, but all these things did not prevent the one-year statute of limitations from applying, because however irregular and defective the proceedings leading up to the sale, still the court had jurisdiction of the administration, and the sale was made by order of the probate court.” Here, at last, we have the court boldly declaring its position that, although a sale was decreed to pay debts when all the debts were absolutely barred, and there were no debts therefore to be paid, and although the decree was made without jurisdiction of the parties in the particular case, for the want of notice, nevertheless this statute applies to cut out the rightful owners of the land. “ Jurisdiction of the administration,” say the majority. What on earth has “ jurisdiction of the administration ” to do with jurisdiction to make a decree in the particular case, in which it is conceded no notice was served on- the parties to be affected? My Brethren distinguish between the general
I will pursue the subject no further. I regard this decision asa most lamentable one. The result of it no man can foresee. Reversioner and remaindermen will have no rights left under the construction of § 2173 given by the majority to this section.
This case is of such great importance, and has been so ably argued, that the reporter is directed hereby to- set out all the briefs in full.
For all the reasons above indicated, I most emphatically dissent m tolo from the opinion of the majority, and the judgment following it.