Jordan v. Bobbitt

45 So. 311 | Miss. | 1907

Lead Opinion

Mayes, J.,

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 possession of the land, accrued to them on the 15th day of August, 1903. It will be seen from the above statement that this suit was instituted about sixteen months after the date it is alleged that the cause of action accrued. The importance of emphasizing this will be made manifest later on in the opinion. Jordan pleaded the general issue, whereupon the case went to trial on facts lying almost entirely of record.

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 dedared the estate insolvent, and again asking for the sale of the realty to pay the debts. In this petition he asked that he be authorized to sell all the land, induding the dower. It seems that nothing was done, however, except the filing of the petition. In October, 1872, eleven years after the death of Bobbitt, still another petition was presented to the court suggesting that-it had made an order at its Odober term,’ 1867, declaring the estate of Bobbitt insolvent, and this petition prayed for authority to sell all the land, including the dower, and the land in controversy for the purpose of paying the debts. At the February term, 1873, a pro confesso was entered against all defendants, heirs of Bobbitt, and a decree entered directing the sale of the property. This decree seems to have been entered at the February term, 1873. In August, 1873, Raymond Reid suggested the death of John A. Hanson, the former administrator, and prayed to be appointed in his stead. On the 6th day of August, in the same year, an order was entered directing Reid, administrator, to sell the land. At the February term of the chancery court in 1871, Reid, administrator, filed his report, wherein he states that he sold all the land, and the particular land in controversy was sold to W. B. Mann for cash, and he further recites “ that the said several purchasers having fully complied with the terms of the sale, by paying the purchase money, for the several parcels of land, and that the deeds have been made to the purchasers by the administrator.” It is not shown that there was ever any confirmation of this sale by any decree of the court. It is needless to trace the further variations in the history of this title, as it appears in this record, further than to make this statement about it: That J. L. Jordan is a remote vendee under the title of W. B. Mann. It is the sale under the decree of the court to W. B. Mann that is sought to be invalidated, and upon the validity of this sale, or its invalidity, all subsequent titles depend. This suit is an action in ejectment brought by the heirs of Bobbitt to recover as reversioners the eighty acres of land comprising the homestead, of their father, and claimed to have been purchased by W. B. Maun under the sale by the administrator November, 1873. W. B. Mann, the purchaser, was in possession of this land at the time he purchased at the administrator’s sale by virtue of a deed executed to him by the widow, Mrs. Middleton, and her husband, in 1867, about six years before the sale of the administrator and the purchase by Mann. In other words, it may be considered as a conceded fact in this case that Mann took possession of this property by virtue of the deed to the dower interest of Mrs. Middleton made in December, 1867, and not by virtue of his purchase at the sale of the administrator in 1873, being already in possession under the deed of the dower interest when he bought at the administrator’s sale. Mrs. Middleton died in June, 1904, so .that whatever estate Mann obtained by virtue of the conveyance of the dower interest of Mrs. Middleton in 1867 terminated in June, 1904, and from that time on the parties in possession were in possession under such right as was obtained by virtue of the sale by the administrator. In other words, until the death of Mrs. Middleton, all the vendees of Mann held possession of this property by virtue of the conveyance by Mrs. Middleton of her dower interest, and their ^possession was not adverse to the Bobbitt heirs up to the date of the death of Mrs. Middleton. After that time, which covered a period of about sixteen months from the date of the death to the time of the institution of this suit, whatever claim the vendees had was based upon the title obtained by Mann at the administrator’s sale, and was adverse to the heirs.

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 sale was not made in good faith, and the purchase money paid, as is stated in the report of the administrator. It seems that they rely upon the' fact that from an inspection of the record at the time of this sale it would appear that when the 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 the time this petition was filed the statute of limitations was not pleaded, and, even though the accounts filed with the petition might appear to be barred, the statute of limitations was not set up, and, upon the showing made by the administrator that there were debts, the decree of insolvency was made, and the property ordered to be sold, and the sale took place, so that we have the property sold by order of the probate court, and with no proof in the record that the sale ivas not made in good faith, and the purchase money paid, unless it can be said that the irregularities in the record leading up to the sale constitute the proof, and a suit brought to recover the property more than one year after the sale and more than one year after the time when there was no obstacle in the way to prevent a suit by the heirs. The decree of the probate court in 1873, ordering these lands to be sold, appears to be void for want of proper notice to the parties.

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 follows: ' “ 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 a chancery court, where the sale is in good faith and the purchase money paid, unless brought within one year.after such sale.” It is the latter clause of this section which is involved, since this sale was made after October 1, 1871. Now, let us emphasize the fact that this sale was made in 1873, and when the sale was made the heirs could not have brought suit at law to recover the land, because Mann was in possession of the land under a deed to the dower interest of Mrs. Middleton. In other words, he was in possession by virtue, of a purchase made by him of the life estate held by Mrs. Middleton, and no suit that could have been instituted by the heirs could have turned him out, nor could they, in the language of the statute, have brought any suit “ to recover the land,” because the onlyánterest tiiey had was the reversion, and this interest did not take effect until the termination of the prior life estate held by Mann under his purchase from Mrs. Middleton. The whole court concede that 'the heirs could not have brought suit at law to recover possession of the property at the date of sale. The question then is: If it would have been impossible for them to bring the suit within one year from the date of sale, because they did not have any right to ■recover the land at law, does this statute apply to them ? In other words, where property is sold by order of the court, and the property sold consists of the reversion after the termination of a prior estate, either for life or years, and the parties buying the reversion have no right of entry until the termination of the prior estate, and the,heirs have no right to possession at the date of sale nor within one year after, does this statute apply ? 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 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 ? If not the one-year statute, what statute of limitations is to control? It must not be forgotten that from necessity grew the statute. While it seems peremptory and harsh, its purpose is beneficent. Before the passage of this act, as the legal history of this state shows, the purchaser at a probate sale was merely the purchaser of a lawsuit. This being the case, property sold at an administrator’s, executor’s, or guardian’s sale was sold at a sacrifice. TIeirs and Avards were stripped of their property for a mere song, and purchasers at these sales felt no security under their purchases. It Avas to cure these evils, and to secure to these parties a more just return for the sale of their property when misfortune made the sale necessary, that this statute was passed. The statute is Arise, wholesome, necessary. The beneficent purpose aimed at by this statute should not be destroyed. 11 Am. Dec., note on page 627; Waln v. Shearman, 8 Serg. & R. (Pa.) 357 et seq., 11 Am. Dec., 624.

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 ownership as amounted to a disseisin. It would be meaningless, under the act of 1844, to say that the heif shall lose his right of entry in three years, when during that time, nobody was opposing his right and holding him out; no one being in possession against whom he could assert it by suit. So under the.present law, it is futile to say that he must bring his action 'within a year, when there is no disseisor in possession against whom he could bring it. Statutes of limitation assume that the claimant has a right of action which he forbears to assert, and may lose if he does not use in time; but how sue, when no one is in adverse possession to him? . . . The statutes applies the limitation, on the assumption that the vendee, or some one under him, was in possession when the statute went into force, and intends to apply the bar within a year thereafter.” The above case was decided in 1876, five, years after the enactment of § 2173 of the Code of 1871, and is practically a contemporaneous construction of the statute in question. It expressly holds that when, for any reason, the person entitled to bring the action cannot do so, then the one-year statute applies only from the time when the suit could be brought, and expressly holds that this statute commences to run from the date at which the right to sue first accrues. From 1867 to June, 1904, Mann and his vendees were in possession of the property by virtue of the conveyance made by Mrs. Middleton of her dower estate. After her death in June, 1904, and about eighteen months before this suit was instituted, the parties in possession held by virtue of the administrator’s deed, and the heirs, not having instituted their suit within the year, cannot now do so.

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 will accomplish the end aimed at. It was meant to cure all defects in the sale, no matter from what cause, whether before or after decree, unless the heir brought his action within the time to contest and show its validity. Though the sale be void, he is under color and claim of title, and the statute does no more than protect and perfect his imperfect right, after the expiration of a year from the time the right to bring the suit arose.” In Hall v. Wells, 54 Miss., 297, Judge Campbell, delivering the opinion of the court, after reaffirming the views of the court as announced in Morgan v. Hazlehurst Lodge, says: “ The section of the Code was not intended, and does not have the effect, to cure by express enactment illegal or defective proceedings in the probate court for the sale of property by administrators, executors, or guardians.” It may be readily admitted that this statute is not a curative statute, but how can that affect the proposition? Neither Judge Simkall, in delivering the opinion in the case of Morgan v. Hazlehurst Lodge, 53 Miss., 665, nor Judge Campbell, in delivering the opinion in Hall v. Wells, 54 Miss., 289, say that this statute is a curative statute intended to reach back and validate that which was invalid; but the statute, in its effect, operates both as a remedial and curative statute after one year from the date of sale, and this is what is stated by the court in Morgan v. Hazlehurst Lodge and in Hall v. Wells, supra. As is said in the opinion of the court in Hall v. Wells (page 297), the statute “ originated in the known fact that a'very large proportion of the sales of property by virtue of the orders of probate courts was void, from various causes; and, as insecurity of titles 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, not by relating back and validating proceedings, but by requiring all actions to recover any property before that sold by any administrator, executor, or guardian, by virtue of the order of any probate court, on the ground of the invalidity of such sale, if the sale was in good faith, and the purchase money paid, to be brought within one year after said section should take effect. This section applies to all sales of the class mentioned which are invalid, no matter on what ground. Any sale which is included in the evil intended to be remedied is embraced.” In neither of the cases referred to does the court say that this is a curative statute, in that it has any retrospective operation, reaching back .and making that valid which was invalid at the time it was done; but, in the language of Judge Campbell in Hall v. Wells, the statute “ is wholly prospective,” doing no more, quoting the language of Judge Simrall in the case of Morgan v. Hazlehurst Lodge, than to “ protect and perfect his imperfect right, after the expiration of a year from the time the right to bring the suit arose.” “ Statutes of limitation are statutes of repose, and we should seek in construing them to give them the operation intended. We must not defeat them by a strictness of construction it was never designed they should be subjected to.” Toll v. Wright, 37 Mich., in part of the opinion to be found on page 102. Again, in Morgan v. Hazlehurst Lodge, supra, on page 682, this court has said that this statute “ should receive that construction which will accomplish the end aimed at.”

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 to it, and begins to run from the date that plaintiffs could have maintained this suit, and, since they did not institute the suit -within the year, they are barred. This is expressly decided in Morgan v. Hazlehurst Lodge, reaffirmed in Hall v. Wells, and the correctness of the conclusion of the court in those cases 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 persons shall be prohibited, enjoined or restrained, shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.” If the court had not already settled this question, the statute itself settles it. When the plaintiffs could not sue, this statute protected them and kept alive their right until such time as they could sue. When the right to sue accrued, the one-year statute began to run immediately, and at the end of one year from the date at which their right arose they were barred. No other statute of limitations can be applied, because the statute has made no exceptions, but includes all sales of any property sold by order of the chancery court. The statute does not say that it shall not apply to the sale of a reversion or a remainder. A reversion or remainder is property. The exact case has never before been before the court, but the same question has, and the question is expressly settled in the case of Morgan v. Hazlehurst Lodge, and, as already stated, if the court had not so decided, § 2170 of the Code of 1871 expressly provides the time when this suit shall be maintained, and expressly says that, while the person cannot bring the suit, such time shall not be computed as any part of the period of time limited by this chapter for the commencement of such action. It will be seen by this section, by its express provision, it is made to apply not to any particular section of the chapter, but to the entire chapter on the subject of limitations. Now, while there is no express statute prohibiting the plaintiffs in this suit from maintaining this action during the incumbency of the property by the life tenant, yet it is by virtue of the law that they are prohibited from maintaining this suit, and therefore, since the statute of limitations under construction is contained in this chapter, and they are prohibited by law from suing up to the date óf the termination of the life estate, they are included within the provisions of § 2170, by all sensible and reasonable construction of the statute, remembering that it is to be construed as not to defeat the end aimed at. Statutes of limitation are to be construed together, and one section is not to be excerpted from the entire statute and made to stand alone; but all the statutory provisions on the subject are to be construed, and they are to be so construed as to give effect to the purpose of its enactment. We have in this ease a sale by order of the probate court, a purchaser, possession taken under the title acquired at the sale at the death of Mrs. Middleton. The statute says that no action shall be brought to recover land or other property sold by order of the probate court where the sale is in good -faith and the purchase money paid, unless brought within one year after such sale. At the date of sale the parties could not sue at law. . Section 2170 provides that in such cases the statute of limitations shall begin to run only from the date when they could sue. We have the decision in Morgan v. Hazlehurst Lodge construing this statute and holding this to be the true construction. The decision was made almost contemporaneously with the statute, over thirty years ago, and by this decision a rule of property is established. To hold otherwise would mean that § 2178 should have added to it, by this court, that this section shall not apply to the sale of a reversionary interest. It would involve the overruling of the contemporaneous decision in the case of Morgan v. Hazlehurst Lodge. The construction we place upon the statute is in keeping with the spirit and purpose and end aimed at by the statute. By the construction which we place upon this statute these plaintiffs are not narrowed in any right which they acquired. Under our construction, they are relieved from the necessity of instituting this suit at any time during the life tenancy, which was for a period of nearly thirty years, and are only required to institute the suit within one year after the date when the life estate terminated. By our construction they are given broader rights than they would have had but for the life estate, and the integrity of the statute is preserved. The rights of the heirs are not the only rights which the statute under consideration guards, but it guards the rights of the purchaser as well. The purchaser may buy at a probate sale with as much reliance upon the effectiveness of the bar created by this statute, in a proper case, as the heir may look to it as his refuge in case the sale by order of the court was void. This statute was enacted for both parties, and each had a right to rely upon it.

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 a report made to the court by the administrator, in which he recites that the receipt of the money is expressly acknowledged by him. It shows that the administrator recites in his report that the purchasers have complied in every respect with the decree of the court, and there is not one syllable of testimony in the record to impeach the truthfulness of this report made by the administrator. 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, and they may here rest their ease. The prima facie case thus made may be overthrown, but it must be upon some proof of bad faith. Fraud is not to be presumed, nor will mere irregularities and defects in the record prove fraud or bad faith, unless those defects and irregularities are such in themselves as furnish direct proof that the sale was not made in good faith, or the purchase money paid. Bad faith cannot be argued from the mere fact that the proceedings leading up to the sale were irregular, and such as to create a void sale. If this could be done, then there would be no need for the statute. The very object of it is to prevent these questions of irregularity, and defective proceeding, from being gone into for the purpose of vitiating the sale after the lapse of a year. In all the cases in which sales have been declared void under this statute on the ground of bad faith, it is because the facts of the case affirmatively show that something had been done which invalidated the sale, and in which the purchaser participated as well as the administrator. If these facts appear in the record, of course the statute has no application; but in this case there is absolutely nothing to impeach the good faith of the sale and the receipt'of the purchase money, save the fact that the record shows that the case is filled with defects and irregularities, such as would render the sale void but for the statute. There is no proof anywhere of any bad faith on the part of the purchaser.

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 this statute to become effective and fasten itself upon the transaction, it is only necessary that the sale should take place by order of the court. It need not have been a valid sale. It extends to void sales. This whole record shows that this sale did take place under an order of the probate court. 11 Am. Dec., note on page 627; Richardson v. Brooks, 52 Miss., 118; Hall v. Wells, 54 Miss., 289; Jeffries v. Dowdle, 61 Miss., 504; Morgan v. Hazlehurst Lodge, 53 Miss., 665; Waln v. Sherman, 8 Serg. & R. (Pa.), 357 et seq., 11 Am. Dec., 624.

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 purpose is to make an undisputed possession cure defects in the proceedings. Indeed, it cannot possibly, as we eoncéive, mean more than this: A sale purporting to be made under the provisions of the chapter, and in pursuance of an order professedly based upon them. If the administrator with such an order has made, sale under the provisions of this chapter and given a deed under which the necessary possession has been had, we think the case is fairly within the intent of the statute. Was such the ease here ? We think it was. Indeed, we understand it to be conceded that the probate court in making its order must have supposed it was under this chapter. The complaint is that the application for license to sell made out no case. But there was colorable ground for judicial action, if nothing more. The existence of charges of administration would have been a valid ground for an order, and, if the court assumed that expenses for the support of the children would constitute a lawful claim against the estate, we are not prepared to say that the proceedings could be assailed collaterally for any error in that regard. But it is enough for us to conclude that here was an order for the sale of these lands made in reliance upon this statute, and a sale made in pursuance thereof. Both the judge of probate and the administrator must have supposed they had this statute for their warrant. They assumed to be acting in pursuance of its provisions, and we think nothing more is requisite to entitle the purchaser and those claiming under him to the benefits of the limitation. Statutes of limitation are statutes of repose, and we should seek in construing them to give them the operation intended. We must not defeat them by a strictness of construction it was never designed they should be subjected to. Let it be conceded that the administrator’s sale was at the time void, the fact remains that the court assumed to order it under the provisions of this statute, and the administrator has followed its provisions in making the sale. It is consequently a sale ‘ pursuant to the provisions ’ of the statute in the sense in which we understand the Legislature to have employed these terms. But it is denied by the defendant that the Legislature has power to validate a void sale. This is not what is attempted here as we think. The statute is intended as a statute of limitation in the proper sense. It is true that the section first recited provides that ‘ no action for the recovery of any estate/ etc., shall be maintained ' unless commenced within five years next after the sale ’; and, if these words are taken literally, they would seem to cut off an action at the expiration of five years, though there had been no adverse possession. So construed, the statute would not be one of limitation, for the provision would apply equally to cases where parties were in the enjoyment of their rights and to those where they were deprived of them; but the idea of a statute of limitations is only this: That the remedy of the party is to be taken away because he is unreasonably negligent in the assertion of his rights.” We also cite Pryor v. Winter, 147 Cal., 554; 82 Pac., 202; 109 Am. St. Rep., 162; Rice v. Dickerman, 47 Minn., 527; 50 N. W., 698; Spencer v. Sheehan, 19 Minn., 338 (Gil., 292).

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. Rep., 220, cited by counsel for appellees, while seeming to support their contention, does not receive our approval. The authorities cited in the opinion do not sustain it, nor is it sound in its reasoning. In the case of Waln v. Sherman, 8 Serg. & R. (Pa.), 357, 11 Am. Dec., 624, cited in the case of Kessinger v. Wilson, supra, on page 360 of 8 Serg. & R. (11 Am. Dec., 624), the court in construing an act which provided that “ no action for the recovery of said lands shall lie, unless the same be brought within five years after the sale thereof for taxes,” said, on page 362 of 8 Serg. & R. (11 Am. Dec., 624) : “ What is to be the commencement of the period of limitation ? The best answer appears to be: The first moment when the action could have been brought.” 8 Serg. & R. (Pa.), 367, 11 Am. Dec., 624. In the same case, Duncan, J., in delivering the opinion on the construction of this statute, on page 368 of 8 Serg. & R. (11 Am. Dec., 624), says that, though the act require the suit to be brought within five years from the date of sale, the statute only begins to run when possession is taken under the sale, and it begins to run from whatever time it is taken, making time relate to possession, and not to the date of sale. This opinion also cited several cases, among them the case of Kearle (qui tam) v. Whitehead, Say. Rep., 313. In a footnote to be found in 11 Am. Dec., 627, it is stated that the soundness of the doctrine laid down in the case of Waln v. Sherman has been questioned in Arkansas; but that is the only State that has ever questioned its soundness that we have been able to discover. The decision in Waln v. Sherman was followed by the court in several subsequent decisions mentioned in the footnote above referred to. All of the equity of appellee’s position that the ten-year statute applies, instead of the one-year, as provided by § 2173 of the Code of 1871, applying to all sales by order of the chancery court, is based on the supposed impossibility of maintaining this suit because they were reversioners, and there was a life tenant in possession, and, of course, they could not maintain a suit to recover possession of the land while the estate of the life tenant existed. This is true: They could not have maintained a suit to recover the possession of the land until the expiration of the life estate, but the sale by order of the chancery court cast a cloud on their title, and under § 975 of the Code of 1871, which provides that: “ When any person, not the rightful owner of any real estate, in this state, shall have any deed or other evidence of title thereto, or shall assert any claim, or pretend to have any right or title thereto, which may cause doubt or suspicion in the title of the real owner, such real owner may file a bill in the chancery court of the county in which the real estate may be situated, to have such deed, or other evidence of title, canceled, and such cloud, doubt or suspicion, removed from said title, whether such real owner be in possession, or be threatened to be disturbed in his possession or not; and any person having the equitable title to land in this state may, in like cases, file a bill to divest the legal title out of the person in whom the same may be vested, and to vest the same in the equitable owner ”— they could have maintained a suit in equity to set aside and cancel this very title immediately after the sale was made, while all the facts were fresh and obtainable, but this they did not do. On the contrary, when a full and complete remedy was open to them in the equity court, where they could have canceled and removed this cloud which has subsequently matured into perfect title, they wait thirty years or more — wait until more than one year after the expiration of the life estate — and then undertake to maintain this suit and have applied to it the ten-year statute. The ten-year statute could only apply in a case like this, where the reversioners had availed themselves of this equitable remedy under § 975 of the Code of 1871, and canceled the cloud cast on their title by the sale. Not having done so, in our judgment, by all right and reason no other statute can be applied except the one-year statute.

Reversed and remanded.

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Concurrence Opinion

Calhoon, J.,

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 cannot- be that, because there is an outstanding life estate carved out by the law, this beneficent statute, of repose is emasculated to an innocent purchaser of the reversion. Code 1871, § 2170. On the other view, a purchaser of this reversion, though he may be entirely disconnected from the life estate, is without the protection of this statute. .This case is not affected by the majority opinion in Shannon v. Summers, 86 Miss., 829, 38 South., 345, which was where the purchaser bought as an agent of the administrator. Neither is it affected by the case of Jeffries v. Dowdle, 61 Miss., 508, except in favor of my view that the bad faith of the administrator, to affect the honest purchaser, must be by collusion with him. The law itself prevented action at law for recovery pending the outstanding life estate, and so the statute commenced to run as soon as the legal obstruction was removed. Hazlehurst Lodge case, supra, which is sound and ought not to be overruled. The other view sticks in the bark and is at war with the rulings on the general ten-year statute of limitations, as to which all the authorities hold that, where there is a legal outstanding life title, such as dower or tenancy by the curtesy, making impossible an action for recovery, the statute commences to run when the life estate ceases. Take the general statute, and read “one year” instead of “ten years,” and we have the case before us. Groves v. Groves, 57 Miss., 658-661; Gibson v. Jayne, 37 Miss., 164-167.

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 widow had never sold her dower interest, but had retained it until she died. In such ease it would seem plain that the heirs of her husband, her own children, could not recover, after one year from her death, against a purchaser then taking possession, who had bought and paid for the reversion in good faith, under decree. Section 2173 has, in common acceptation, become a rule of property, and, more than twenty Legislatures having intervened without changing it, ordinary judicial conservatism should prevent the courts from lightly disturbing titles and breeding lawsuits. The position that the statute (§ 2173, Code 1871) applies only to sales of present interests in possession is, as I see it, untenable. The statute refers in terms to “ any property ” sold. There never was a time when a reversion was not property. It was always liable to sale by chancery decree to pay debts. When it was sold, the sale, even if void, could not be attacked after one year. If there was an outstanding term and attack not allowable until it expired, then there must be the one year after expiration. Any other construction plainly emasculates the import and purpose of the statute. It would eliminate from its scope any outstanding lease. It is useless to discuss § 4, Code 1880, and the corresponding sections in the Codes of 1892 and 1906, because the purchaser here bought under § 2173, Code 1871, and acquired a title not to be affected by subsequent enactment. It was part of his contract. Sigman v. Lundy, 66 Miss., 522-529, 6 South., 645. It was one of the statutory inducements to purchasers, but, if there could have been a repeal of § 2173, Code 1871, there was none because the corresponding sections’ of each subsequent Code (same as Code 1906, § 3122) refer to sales “ hereafter to be made,” showing there was no purpose to disturb sales previously made under § 2173, Code 1871. Note, also, that each of these sections of the subsequent Codes have the new sentence, “ unless brought within two years after possession taken by the purchaser under such sale of the property.” This, in itself, effectually disposes of the idea that § 2173 refers only to sales of present interests in possession. If so, the necessity of saying it as to sales “ hereafter to be made ” is not perceived. It would have been just as easy to say it in § 2173. That statute was a very wise one, highly remedial, designed to correct a grave evil, and should have a liberal construction to effectuate its beneficent object. Certainly we should.not restrict its plain scope by judicial interpolation of words not in it.

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.

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Dissenting Opinion

Whitfield, C. J.,

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 included the lands in controversy here. On December 6, 1867, Mrs. Middleton and her husband conveyed the dower land to W. B. Mann. In 1867 John A. Hanson, administrator, presented his petition to the probate court asking that the estate of A. I. Bobbitt be declared insolvent, and that he be authorized to sell the real property belonging to the said estate for the payment of debts. This petition presented to the court did not embrace the dower lands. The final order directing the sale of the lands was made October 14, 1867. Under this order the lands were never sold. Nothing more was done until the year 1871, nearly ten years after the death of A. I. Bobbitt, when Hanson, administrator, presented his petition to the chancery court reminding the court that the probate court of the county had previously declared the estate of A. I. Bobbitt insolvent, and asking the sale of the realty to pay the debts. He asked that he be authorized to sell all the land including the dower. It seems that nothing was done further than to file the petition. In October, 1872, eleven years after the death of Bobbitt, another petition was presented to the chancery court of Leake county suggesting that the probate court of that county had at its October, 1867, term, five years previously, declared the estate of Bobbitt insolvent, and asking the court for authority to sell all the land including the dower land and including this here in controversy for the payment of the debts. At the February, 1873, term of the chancery court, a decree pro confesso was entered against all the defendants and heirs of A. I. Bobbitt. An undated decree in the chancery court directing the sale of the property was entered. It seems to have been entered at the February term of the court in 1873. Still the land was not sold. At the August, 1873, term of the chancery court, Raymond Reid suggested to the court that John A. Hanson was dead, and asked to be appointed administrator. On August 6, 1873, an order was entered authorizing and directing Raymond Reid, administrator, to sell the lands. At the February, 1874, term of the chancery court, Reid filed his report of sale, showing that he had sold all the lands, and that the lands here in controversy were sold to W. B. Mann. His deed is dated November 3, 1873. This sale was never confirmed, nor was any report of it ever called to the attention of the court in any way. Indeed, the record shows the administrator asked for further time,-and at last in February, 1874, the administrator filed a report which was not sworn to, but merely quietly filed with the papers in the case; the court’s attention never having been called to it. Mary E. Middleton died in June, 1904. This suit was filed December 19, 1905, by the heirs of A. I. Bobbitt to recover the dower lands, claiming that it has reverted to them as heirs of A. I. Bobbitt. J. L. Jordan claims the reversion through the sale made hy the administrator in 1873.

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 had no interest in possession until the life estate — that is, the dower estate- — terminated in June, 1904. They might have all died. Their right of “ action to recover the land,” in the language of § 2173 of the Code of 1871, never existed until June, 1904. IJp to that- time Mann was in possession as owner of the dower interest, the life estate. ' From that time he was in possession adversely to these heirs, and from that time only could any statute of limitations run against these plaintiffs. It is conceded, on all hands, that the pretended decree of insolvency, and the decree in 1873 to sell all of these lands to pay debts, and the sale thereunder, were, each and all, absolutely null and void. It is to be specially noted, also, that the pretended decree of insolvency was absolutely void also for the want of notice to the parties interested. In other words, it was a decree without jurisdiction over the parties, 'and hence void for want of jurisdiction to render it. Not a decree voidable for irregularities, but a decree absolutely null and void for want of jurisdiction. The learned counsel for appellant concede this in ’the following language: “ Had the estate never been declared insolvent, then this contention might be true ” — to-wit, the contention that the decree for the sale of the lands was void. Of course, if the decree of insolvency was void for want of jurisdiction, the sale of the lands thereafter under such insolvency decree was itself void for want of jurisdiction.

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 the chancery court where the sale is in good faith and the purchase money paid, unless brought within one year after such sale.” . It is the latter clause of this section which is here involved, since this sale was made after October 1, 1871, by the pretended decree of the chancery court. And it is this latter clause only which has been perpetuated, in changed form, in the Codes of 1880, 1892, and 1906. Let us analyze this statute. It is nothing hut a statute of limitations, short, peremptory, and exceedingly harsh, in that it does not contain, as it ought to contain, a saving for minors or other persons under disability. The exact character of the statute, as being a mere statute of limitations, and not a curative act in any sense, is clearly pointed out by Campbell, J.,in Hall v. Wells, in 54 Miss. at page 297, where he says: “ The section of the Code cited was- not intended, and does not have the effect, to cure, by express enactment, illegal or defective proceedings in the probate court for the sale of property by administrators, executors, or guardians. . It has no retrospective operation, but is wholly prospective. It is founded on a view'of the past, but looks to the future. It was intended 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, not by relating back and validating proceedings, but by requiring all actions to recover property before that sold by any administrator, executor, or guardian by virtue of the order of any probate court on the ground of the invalidity of such sale, if the sale was made in good faith, etc., to be brought within one year after said section should take effect.” This decision squarely settles two propositions: (1) This section is a mere statute of limitations, and not a curative act in any sense; (2) that the time for the computation of the year is, so far as sales prior to October 1, 1871, were concerned, to begin from the said date October 1, 1871. The first clause of the act, which deals with past sales, expressly says, in so many words, that the action must be brought within a year after said section should take effect. To make it commence from any other time would be judicial legislation pure and simple; and just so the last clause of the section provides that no such action shall be brought to recover land or other property sold after October 1, 1811, unless brought within one year after such sale. The exact date from which the one year is to be computed is expressly named in the act, “ one year after such sale,” and to compute that judicial legislation pure and simple. The reason is the same year from any other date than the date of such sale is, also, in both cases, as said by Judge Campbell in Hall v. Wells, to-wit, that the provision was not to cure irregular proceedings either in the past or in the future — that is to say, either before or after October 1, 1811 — but to provide a short statute of limitations of one year, in the one case from the time the section took effect, and in the other ease from the date of the sale. That is the whole scheme. It was made perfectly clear in Hall v. Wells, and any contention that this section is a curative section is in the face of that and all other decisions on the subject. But the monstrousness of applying this section to this suit brought by these plaintiffs is perfectly manifest, when it is considered that the section could not possibly have any application to a suit by reversioners who never had any right of action until June, 1904, the date of the mother’s death, over thirty years after the sale. Here is a statute expressly fixing the date from which the one year shall be computed, declaring that it shall be one year after such sale, and yet we are asked to apply that statute, thus expressly fixing the date from which the one year is to begin, to a suit brought over thirty years after the sale, and brought at the earliest time it could have been brought by the reversioners who never had any right of action until the death of the life tenant. A more monstrous injustice it would be impossible to conceive than the application of this statute to a suit like this.

It is further to be noted that the particular question here involved, -whether this statute has any application to a suit brought by reversioners, has never before been in this court in any case whatever. It is strictly res nova. I am clearly of the opinion on principle, and on authority, and on the express language of the statute itself, that § 2173 of the Code of 1871 has no application whatever to this action. Morgan v. Hazlehurst Lodge does not touch the question here involved. Judge Simrall expressly says, at page 681 of that case: “ It is impossible to suppose that the statute of 1871 intended to cut off the right of the heir to the land, unless there was some person in possession against whom he might bring the action.” And, again, he points out the historical origin of the statute, and shows that, under the act of 1844 (Hutchinson’s Code, p. 831), it was provided that no entry should be made, etc., unless within three years. Commenting on that very significant language, “ no entry should be made,” he again remarks, on the same page: “ In such a case, the heir would not lose his right of action, until the vendee of the administrator entered or asserted such ownership as amounted to a disseisin. It would be meaningless, under the act of 1844, to say that the heir should lose his right of entry in three years, when, during that time, nobody was opposing his right and holding him out; no one being in possession against whom he could assert it by suit. So, under the present law, it is futile to say that he must bring his action within a year, when there was no disseisor in possession against whom he could bring it. Statutes of limitations assume that the claimant has 'a right of action which he forbears to assert, and may lose if he does not sue in time; -but how sue, when no one is in adverse possession to him ? ” This language fits in here with perfect exactness. How could these plaintiffs sue when there was no one in adverse possession until the death of their mother, the dowress, the life tenant ? In Morgan v. Hazlehurst Lodge, Thomas S. Morgan had never been in possession of the lot, and all that Judge Simraxí has to say, along that line, relates to a ease where there has been no disseisor in possession of the land, claiming under the probate sale for the year prescribed in § 2173. Note specially that what Judge Simraxi, said at page 682, to-wit, “ if no one was in possession against whom the action could be brought, then it would take effect after possession began,” is said with reference exclusively to a ease where a present right of action existed, but no defendant was in possession to be sued, and had no reference whatever to a case like the one at bar, where there was no present right of action at all, when the sale was made, and none for thirty years thereafter.

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 a suit brought by the heirs where the purchaser at the chancery sale, or his vendees, had not been in adverse possession for one year from the date of sale. To decide one proposition as to the past was, of course, to decide the same proposition for the future. To show that this judicial construction by the court, through Judge Simrall, that some one had to be in possession who could be sued in order to make § 2173 applicable, the Legislature, in the Code of 1880, and in every Code since, has redeclared that judicial interpretation, by providing .that this statute of limitations could have no application except from two years after possession taken by the purchaser. The argument made by the learned counsel for the appellant that this § 2173 does not mean an action to recover possession is wholly unsound. It is expressly overthrown by the opinion of Judge Campbell in Hall v. Wells, supra, and by the opinion of Judge Simrall in Morgan v. Hazlehurst Lodge, supra, and by the plain and undeniable fact that these constructions, by these two judges, speaking for this court, were crystallized by legislative enactment, as shown in the subsequent statutes. It is certainly idle, now, any longer to pretend that § 2173 of the Code of 1871 related to bills to cancel clouds, as it is plainly said it related alone to actions to recover the land or the property; that is, to recover possession of it, of course. And it is certainly settled by too many decisions of this court to require any citation that reversioners and remaindermen cannot bring an action in ejectment until the estate of the life tenant falls in, and that any statute of limitations passed to bar a present right of action cannot, in reason or right, have any application whatever to such reversioners or remaindermen. See Hoskins v. Ames, 78 Miss., 986, 29 South., 828, where this very § 2173 was invoked and disallowed. But there is another striking thing about Morgan v. Hazlehurst Lodge, going much further in support of the contention of these appellees than is necessary to be claimed here, and that is that that case expressly held that § 2173 could not be invoked to bar the plaintiff within the year from the date of the sale, even where the plaintiff had a present right of action, if it also appeared that there was no defendant in possession who could be sued within the year. In other words, this court very properly refused to apply this harsh and peremptory statute to the case of a plaintiff, even with a present right of action, unless there was some defendant in possession to be sued; and so the court proceeded to say, what has absolutely nothing on earth to do with this case, that suit might be brought by such party with a present right of action within one year from the date when there was some defendant in possession to be sued, and that is absolutely all that was held on that point in that case. Here are reversioners with no present right of action, and yet the court applies to them this § 2173, although they had no cause of action at the time of the sale, and none until their mother’s death in 1901.

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, did give them (lunatics and infants) tbe one year from tlie date of sale, and under Morgan v. Hazlehurst Lodge extended that year from one year from. possession taken by tbe purchaser so that he could be sued. In direct contrast with the liberality of construction by this court of this section, as applied in favor of those who even had a present right of action, in that it extended the time to them to one year from the time when some defendant who could be sued took possession, this court now absolutely holds this section to bar reversioners who never had any right to bring their suit to recover the land until thirty years after the date of the sale, and when, too, no one was in possession of this land holding adversely to them one hour until the mother’s death. In other words, the court held, in Morgan v. Hazlehurst Lodge, and the Legislature subsequently so enacted, that even those .who had a present right of action at the date of the sale might not only sue within one year from the date 'of such sale, but they should have that time extended to one year from the date when some defendant who could be sued took possession, because of the gross injustice of applying the statute to one who could not sue. because there was nobody to be sued.

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 the date of such sale, the Legislature never meant, and the court should never hold, that it could be' applied to plaintiffs who had a present right of action even where there was no defendant in possession to be sued. The contrast is painful, but it stands. What, now, was the purpose and object of the statute ? The purpose of the statute, as said, was plainly to give repose'to titles, but as against those who had a present right of action. The Legislature never dreamed that anybody would suppose this section applicable to those who had no present right of action. One year was, in one view, a very short time; yet, because of the great evil to be corrected, it was a reasonable time as applied against those who had, at the time of the sale, the right to sue, whether adults, or minors through their next friends, or lunatics through their guardians. If these persons wished to challenge the sale, they should challenge it within such twelve months. They could only challenge it by showing that there was no legal sale, or that the purchase money was not paid, or that the sale was not made in good faith, and the purchaser had the burden of establishing such good faith or such payment on the trial. Persons who had a. present right to sue could hunt the country over for witnesses, who knew that the purchase money had not been paid, or that the sale had not been made in good faith. They could examine every person who had any knowledge of the sale and how it, was conducted. They could gather all that evidence within one year; and it was also easy for the purchaser, if he should lose in the trial of such a suit, to get the witnesses within that year to show the value of any improvements, or charges, or taxes which he had paid, so that the status quo, ante the sale, might be healingly restored. These were the reasons behind the statute, even as applied to those who had a right to sue at the date of the sale, and it took these reasons, and it took the present right to sue at the time of the sale, to justify such a statute; but how, in the name of reason, can any of these considerations which stood behind the enactment of this statute find any place whatever, as against reversioners who never had the right to sue at all to recover the land in ejectment, for thirty years after the date of such sale?

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 the November term of the probate court in 1873, got leave for further time to report. Why, it is inconceivable, unless the purchase money had not been paid; or, unless, as he well knew, there was not a valid debt in existence against the estate. An unconfirmed sale is, in the eye of the law, absolutely no sale at all. To invoke this § 2173 in the case of a sale absolutely null and void because there were no debts for which the land could be sold, and because there was no notice to the parties, and because there was no confirmation of the sale, is exactly the same thing as if it were invoked to support a sale by the chancery court where there had never been any process served on' the parties affected, and never had even existed any debt whatever, much less a debt barred by the statute of limitations. In such state of case, no court, in my judgment, could ever apply § 2173 in support of such a pretended sale as that. To do so is to deprive of property without due process of law, in direct violation of the state and the federal Constitutions. In Morgan v. Hazlehurst Lodge there was no dispute about the facts, and the purchaser bought in good faith, and actually paid cash for the lot. Both these propositions are earnestly denied in this case. To show that Morgan v. Hazlehurst Lodge meant that the time must be computed as to furture sales from the date of sale, Judge Simrall cites Jones v. Billstein, 28 Wis., 221, as construing a statute like ours. In that case the plaintiff waited until eleven years, after he was twenty-one years of age, before he began his action, and his contention was that he had no right of action until the administrators had been discharged and five years thereafter. The statute construed in that case provided as follows: “ No action'for the recovery of any estate sold by an executor or administrator,” etc., “ shall be maintained by any heir,” etc., “ unless it be commenced within five years next after the sale” — precisely as § 2173 says, “within one year after such sale,” and the Wisconsin court said, at page 229 of 28 Wis., speaking of the statute: “ By its terms the heir is barred unless lie commences his action within five years next after the sale. Now, if the statute does not commence to run against the heir until the estate shall have been settled, or until de. livered over to him by order of the court, then in.but very few cases would its operation commence at the time of the sale.” In that case there was no action by reversioners, but an action just as in Morgan v. Hazlehurst Lodge. Here, then, is a Wisconsin decision upon a precisely similar statute, with identical words fixing the time for the statute to begin running, at the date of the sale, which squarely holds that the time must be computed from the date of sale. But there is another recent decision upon the identical statute, squarely decisive of the very point here involved. It is the case of Kessinger v. Wilson, 53 Ark., 400, 14 S. W., 96, to be found also in 22 Am. St. Rep., 221. The plaintiffs in that case sued in ejectment; the right of action accruing, as admitted in the case, when the youngest of the plaintiffs attained his majority. The land was sold January 2, 1872. The youngest of the plaintiffs became of age, and the homestead right expired, and the right of action accrued on December 10, 1882. The suit was brought February 5, 1888, sixteen years after the sale, and more than five years after the action accrued. A short statute of limitations, identical with the one here, was invoked to bar the suit. That statute was in these words: “ All actions for lands sold at judicial sales shall be brought within five years after the date of such sale, and not thereafter.” The court after an exhaustive review of the authorities construing similar statutes, in Arkansas, Pennsylvania, Iowa, Alabama, Wisconsin, Kansas, and Missouri, said: “Prom the foregoing view of authorities, it appears that courts are nearly agreed in construing statutes like the five years’, statute pleaded in this case, as to the time they commence running. They hold that statutes of limitation, clear and unambiguous, like the five years’ statute of this state, begin to run, according to their words, from the date of sale, record, or other day, as the time may be thereby fixed. They differ, however, as to the necessity for possession for the full statutory period on the part of the party pleading the limitation, or, if he had possession, as to the effect of it. But no question of that sort is presented for our consideration. The only questions presented, as to the five years’ statute, are, when does it begin to run, and is it applicable to this case ? The words of the statute are. ‘ All actions . . . shall be brought within five years after the date of such sale, and not thereafter.’ It is clear that it commences to run from the date of sale, and not thereafter, as it declares. As it begins to run at the date of the sale, it is difficult to understand how it can bar an action when the cause of it did not arise until more than ten years after the sale had elapsed. The sustainment of a contention to that effect would lead to the absurd conclusion that all rights of action against the purchaser of land sold at a judicial sale, arising after the lapse of five years from the date of sale, are barred at the very instant the right of action accrues. This would be equivalent to a denial of the right to be heard at all in the vindication of such rights. It is manifest that the statute was never intended to be applied in such cases, but that its object was to require all parties to bring suits against purchasers at judicial sales within five years after the date of sale, for the enforcement of only such rights to recover the land sold as can be enforced in an action brought within that time, and to bar the recovery of such rights in any suit brought thereafter. It has no application in this action. The only statute' of limitations applicable to this case is the seven years’ statute.”

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 § 2173. The very inherent nature of their estate, as reversioners, the universal principle of law that they can never bring ejectment to recover the land they hold in reversion until the expiration of the life estate, the utter impossibility of such reversioners, thirty years after a sale, getting up the evidence as to how the sale was conducted, whether the purchase money was paid, whether it was in good faith, what improvements, and charges, and taxes the purchaser had been at the expense of paying or making, are absolutely conclusive of the utter incongruity of applying this section to such reversioners. The Legislature did not say “ except'reversioners, etc.,” therefore, for this plain and obvious reason; but the Legislature did say expressly and emphatically that the suit to set aside the sale and recover the land should be brought within one year from the date of such sale, and what the majority of the court do is to interpolate these words into the statute, to-wit, that “ the suit shall be brought within one year from the date of such sale, except where reversioners are involved, and then it shall be brought within one year from the expiration of the particular precedent estate, life estate, or otherwise.” Where did this court get the authority to substitute, for the words, “ within one year from the date of such sale,” the words I have indicated, or equivalent words, providing that the action need not be brought within one year from the date of such sale in the case of reversioners, but might be brought within one year from a different time, the death of the life tenant, etc? The court cannot escape the irrefragable logic of this position by saying the statute ought not run against these reversioners until the expiration of the life estate, and that therefore the court is authorized to say the Legislature meant, in their case, not one year from the date of such sale, but one year from the date their right accrued, the death of the life tenant. The court has no power to blot out the words “ within one year from the date of such sale,” and substitute other words — to expunge from the statute the point of time fixed expressly by it, from which the statute is to run, and write into the statute another point of time, from which the statute is to run as against reversioners. There is no need for any such judicial legislation. The plain and simple reason why the Legislature did not refer to reversioners is that reversioners, and no other persons who did not have any present right of action when the law was made, were ever dreamed of as being embraced within this statute, for so to have held would have been in the face of every decision that can be found in any of the books in respect to statutes of limitation, the universal rule as to which' is that they never run against parties who have no cause of action at the period of time to which the statute refers for the starting of the statute. If one had asked the Legislature which passed this act, “ Do you mean to embrace reversioners ? ” the answer would have been, “ Why, of course not.” If it had, then, been said, “ Had you better not expressly say you do not mean reversioners ? ” the answer would have been just as prompt, “ Universal law prevents the application of this statute, or any other statute of limitations, to those who have no right to sue when the sale was made.”

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 action when the sale was made. These reversioners had no such present right of action. We deem it useless to pursue the subject. 'Unless this court is to take the place of the Legislature, and overthrow all decisions to the contrary, the section must be given the meaning it plainly declares, to-wit, that the time must be computed from the date of such sale, and this section must be held applicable alone to those cases in which a right of action existed, came into being coetaneously with the sale. It had no sort of application, by its very terms, to any other action than an action, the right to begin which commenced on the day of the sale, and to apply it to an action brought by reversioners thirty years after the sale, which action could not possibly have been brought until the death of the life tenant, 'is a monstrous perversion of the whole spirit and object of the statute, and would impute to the Legislature a patent absurdity. Let me add one other most significant fact in this case: That neither the great learning of the learned counsel for the appellant, nor that of my Brethren, has sufficed to produce one single solitary authority, in this state or elsewhere, holding that a statute like this can be applied, possibly, to reversioners or remaindermen. The decisions referred to by my Brethren in Wisconsin and elsewhere are simply decisions like Fox v. Coon in 64 Miss., and have no earthly application to an action of ejectment to recover possession of the land.

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 court held, unanimously, that all that fell far short of being sufficient evidence to show that the purchase money was paid. It said: “ But it protects no one who is not proved to have purchased the land in good faith, and to have actually paid the purchase money. In the case at bar, Mrs. Clay (the daughter and sole heir of the brother and partner of the intestate, who had probated against the estate a debt due to him from the partnership) bid off the land at the administrator’s sale, and received a deed thereof from the administrator. But the court, before which the- case was tried (a jury having been waived in writing by the parties), has expressly found that ‘ no money was ever paid on the bid,’ and ‘ no credit was ever entered upon the probated indebtedness.’ It is indeed found that ‘ a receipt was given to the administrator for the amount ’ of the bid, and, although by whom that receipt was given does not appear, it may be presumed to have been given by some one authorized to represent her father’s estate and herself. But a mere receipt, acknowledging payment of money, is not conclusive evidence against the person giving it. It is not shown that any release of the probated debt was ever executed, or that the administrator ever accounted in the probate court for the amount of the bid. Mrs. Clay could not have been compelled to pay the amount, and, if she bought without notice of the invalidity of the sale, could have had the sale set aside in equity. Miller v. Palmer, 55 Miss., 323. In short, no act appears to have been done by herself, by the administrator, or by the probate court, which, on the one hand, changed her condition, or estopped her, or any representative of her father, to deny that the debt probated by him had been paid or discharged, or to assert any right which existed before the sale; or, on the other hand, estopped the administrator to deny that the purchase money for the land had been paid to him. Under such circumstances, to hold that the purchase money is proved to have been paid would be to disregard both the words and the intent of the statute. The case of Summers v. Brady, above cited, on which the defendants relied, is quite distinguishable. The facts of that case, as assumed in the opinion, and more fully brought out in Sivley v. Summers, 57 Miss., 712, were as follows: The land was sold by order of the probate court for the payment of several debts probated by Silvey, the administrator, by one Drone, and by various other persons, and was bought by and conveyed to Drone in his own name, but in fact for himself and Sivley jointly. Drone immediately conveyed two-thirds of the land to Sivley, and the two afterwards conveyed the whole to a third person, under whom the defendants claimed title. The administrator settled his final account, charging himself with the whole of the purchase money as in his hands. The court ordered that money to be divided pro rata on all the probated debts, and all the creditors but Drone and Sivley were estopped to deny that their debts had been extinguished by the sale and conveyance of the land, but had conveyed it away, and Sivley, as administrator, was estopped to deny that he had been paid the whole purchase money upon the original sale, because he had charged himself with it in his final account allowed by the probate court. In the other case, cited for the defendants, of Calicott v. Parks, 58 Miss., 528, the report does not show that any question of the mode of payment was presented or considered.”

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 such recitals in the deed and in the report were sufficient would be to “ destroy both the letter and the spirit” of said § 2173. This court now holds the precise contrary, to-wit, that, where there is not a shred of evidence that the purchase money was paid, except these very same identical recitals in the deed and in the report of sale, they were sufficient to meet the burden on the purchaser, and that, too, when the sale had never been confirmed. The report was never called to the attention of the court in any way whatever. No credit was entered on any of the probated indebtedness; not a trace of the purchase money is anywhere disclosed by the record. Indeed, it is perfectly manifest that all the debts in this case were barred by the statute of limitations long before the decree for the sale of the lands was made in November, 1873. There had been negligence of the grossest character on the part of the administrator Hanson, who died before any sale was made, and no decree for the sale of these lands was entered for more than twelve years after the administration of the estate was begun. It was the duty of the administrator to plead the statute of limitations, and, as held in Nutt v. Brandon, 85 Miss., 702, 38 South., 104, and Sivley v. Summers, 57 Mass., 712, and in Huntington v. Bobbitt’s Heirs, 46 Miss., 528, all the debts were haired long before the decree was made.

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 most wholesomely and properly. The court said, at page 536: “ Prolonged administrations of estates of deceased persons seldom benefit any others than the administrators of such estates. As a general rule, the sooner an estate is administered and settled up the better for all parties interested therein. Speedy administrations leave but little inducement to the personal representative to enter into speculation with the funds of the estate, which should be applied to the payment of the debts. The law gives six months to the administrator to collect the effects and ascertain the condition of the estate, during which time he is protected from suits .by creditors. It is his duty to pay the debts of the estate as soon as practicable, and thereby save the costs of litigation, and stop the interest accruing against the estate, and, when the debts are paid, the estate should be distributed as soon as possible, among those who are, by law, entitled to it. And the case of Byrd v. Wells may be cited as one of the best illustrations of the correctness of these views. Wells, the testator, died in February, 1844, and in the month of March following Stewart proved his will'and qualified as executor. And in June, 1860, more than sixteen, years afterward, Byrd, as administrator de bonis non of said executor, filed in the probate court the final account of the executor. No inventory or repolt of the personal estate or credits of Wells appears ever to have been made by the executor, Stewart; nor did he, so far as appears, ever return an annual or partial account. What the executor was doing with the estate during all this time, whether litigating with the creditors or not, we are not informed; but certain it is that as soon as Byrd filed the final account of the executor, litigation was commenced with the heirs and legatees of the testator. It is certainly difficult to conceive how the heirs and creditors could be benefited by the long procrastination of the administration of that estate. The law, justice, and policy conspire in requiring a speedy administration of the estates of decedents.”

Let me stress one or two facts about this last case. The A. I. Bobbitt involved in the 46 Miss. case is the same identical A. I. Bobbitt, the father of these appellees.- It was the administration of his estate which was involved in that case and is involved in this, and the identical question in that administration, involved in both cases, was whether the administrator had the right to revive these barred debts. More than that, Baymond Beid, the very administrator who secured this order of insolvency and this sale, appeared as counsel in that case, denying the authority of the administrator so to keep alive these debts, and induced the court by his very correct argument to overrule Byrd v. Wells. What resulted from this ? Why, that this very identical administrator, Baymond Beid, was bound to have had actual knowledge from the case of Huntington v. Bobbitt’s Heirs, in 46 Miss., 528, that neither Hanson, his predecessor as administrator, nor himself, had a scintilla of authority to keep alive these debts; and yet, in the face of this knowledge, we find this same administrator Baymond Beid filing this petition to sell this land to pay these debts in November, 1813, although the decision of Huntington v. Bobbitt’s Heirs was rendered by this court just the year before, April, 1812, and the law on the subject was therefore fresh in his mind. Is it possible that any court can justly hold that a sale by this administrator, the counsel for this estate in Huntington v. Bobbitt’s Heirs, himself having the law declared that the administrator in this very estate had no power to revive these debts, such sale being presumed to pay debts that had no existence on earth, could have acted otherwise than in bad faith?’ It is an absolutely unthinkable thing that any sale to pay debts, where no debts existed, could be other than in bad faith. There is not a shred of evidence that any creditor ever received a dime of this purchase money, and all the implications point to the fact that it was never paid at all. At all events, the burden of proof that the purchase money was paid is upon the purchaser, as held in Jeffries v. Dowdle, 61 Miss., 508; and we have heretofore held that this proof must be clear and convincing. Gibson v. Currier, 83 Miss., 255, 35 South., 315, 102 Am. St. Rep., 442. The proof that the purchase money was paid is an absolute condition precedent to the application of the statute at all.

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 law and the directions of the decree, then the sale has not been made bona fide.” This is the express language of the opinion on which the majority so much rely. Does any one doubt for one instant from this record that the administrator and the purchaser at this sale knew these debts were barred, and that, if the debts were barred, the court was without power to order a sale ? The administrator recites, in his deed, that the purchase money was paid, but there is nothing in the record to show any application of the money to the indebtedness of the estate. The United States supreme court in the case of Clay v. Field, expressly said “ that a receipt was given to the administrator for the amount of the bid, but that a mere receipt acknowledging payment of money was not conclusive evidence against the person giving it, and that it was not shown that any release of the property was ever executed, or that the administrator ever accounted to the probate court for the amount of the bid.” Every one of these statements is strictly true of the administrator’s proceedings in this record; and yet the majority ignore these declarations of the United States supreme court construing this statute, while boldly asserting that this case has no application whatever to the case at bar. It is simply on all fours with the case at bar, so far as the payment of the purchase money is concerned, and I am now again referring to it to show that the purchaser must, undoubtedly, have known the bad faith with which the administrator was acting throughout.

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 was procured by Raymond Reid, administrator, -who had himself, as counsel, secured from this court in Huntington v. Bobbitt’s Heirs, 46 Miss., 528, a decision never questioned or overruled since, that there were no debts of this estate in •existence, and neither Hanson nor he had authority to waive the statute of limitations; that the law required such proceedings to be instituted as speedily as practicable after the administration had begun; that the parties were not properly in court when the order of sale was taken; that all the debts which the land was sold to pay were at the time barred by the statute of limitations; that a sale was made but never reported to the court in proper form, nor called to the attention of the court, nor confirmed by the court. This, and this only, is the proof offered by the purchaser to show the good faith of the sale. I submit with perfect confidence that it conclusively demonstrates its utter bad faith, and that the court below was fully warranted in so finding. The universal maxim is that every presumption will be indulged in support of the judgment of the court below, and that, wherever it is reasonably possible to refer that judgment to evidence which warranted the finding, it will be so referred, and the judgment sustained. Now, it is too plain for argument that on this testimony the circuit judge would have been abundantly warranted in finding, as a fact, that the sale was not made in good faith, and, if that be true, the judgment will be referred to that finding, and upheld according to universal authority on this point. The court, on the other hand, refers the judgment, not to some evidence which could have supported the finding, but to something by reason of which to overthrow the judgment. This, I submit, is a reversal of the uniform maxim on the subject: “ Omnia esse rite acta prcesumuntur.” What the court here is limited, to, strictly, as I understand appellate power, is to say that, on this testimony, the judgment below was clearly and manifestly wrong in finding that the sale was not made in good faith. And the same observation may be made with respect to the finding entirely proper on the evidence, that the purchase money had not been paid. Indeed, with respect to the payment of the purchase money I propound this query: If the mere recital in the deed and report of the administrator, without another scintilla of evidence,, be enough to satisfy the burden on the purchaser of showing, by affirmative testimony, that the purchase money was paid, is there any conceivable quantum of proof less than this which can be imagined? And yet the rule is laid down by this court, repeatedly, that the quantum of proof which the purchaser must produce to show that the purchase money was paid must be clear and convincing. If, I say without the slightest hesitation, this proof furnished by the purchaser shows, or tends to show, anything on these two points, it is a demonstration that neither was the purchase money paid, nor was the sale made in good faith; and what this court now holds, let it be precisely noted, is thht this identical proof which I have set forth above, and on which the judgment below might well have found that the sale was not in good faith, and that the purchase money was not paid, was such as to compel this court now to reverse that judgment of the ground that the verdict was manifestly wrong. In other words, the court holds that this evidence does not even tend to show bad faith, or that the purchase money was not paid, but that it conclusively shows the opposite. The effort seems to have been, not to discover, in accordance with the maxim quoted above, whether the evidence established, or tended to establish, that the purchase money was not paid, and the sale not made in good faith, but how possibly inconclusive and meager the evidence might be on which this court could safely overturn the judgment of the court below. Look, now, by way of summary, .to. the evidence that the purchaser introduced to show that he had. paid the purchase money: First, he introduced a -deed by the administrator, made out of time, before any sort of report was pretended to have been made. The deed was made long before the report was filed at the February term, 1874; indeed, in a few days after the sale. Second, this report was not sworn to, as required by § 1151 of the Code of 1871. Third, the report was never presented to the chancellor. Fourth, there is, nothing in the record to show that the chancellor’s attention was ever called to the report at all. Fifth, the administrator never charged himself with this money in his accounts. Sixth, it is.not shown that he ever paid a dime of these alleged debts with the money. Seventh, there is nothing in this record to furnish any explanation of what disposition the administrator made of the money he alleges he received. Now, mark the point, these records are introduced by the purchaser himself. He stands on these records, and on these records alone, and it is shown that the records "are complete; that nothing has been lost out of the papers in this administration. If the administrator had received the money, would he not most manifestly have charged himself with it in his account as administrator? The very fact that the sale was never confirmed is strong evidence that the purchase money never was paid. The administrator could never have secured a confirmation of the sale, unless he had paid the money into court; and that is doubtless the reason that the sale never was confirmed. Most manifestly the chancery court had no power, under any circumstances whatever, to sell the lands of this decedent to pay debts, if in fact none existed to be paid. How can anything be plainer than that a proceeding, which could not under any circumstances be valid, cannot be made valid by the mere lapse of time? We have repeatedly held, recently, that none of the short statutes of limitations which protect tax sales can possibly have any application if there existed no power to sell the land for taxes, whether the want of power was due to one cause or another; that, in every such case, these statutes of limitation had no sort of application. And yet the court is now holding that this statute of limitations, if it had any application at all, can be invoked to destroy the rights of these reversioners, in a case where a sale has been ordered by a chancery court to pay debts, when in truth not a single debt existed to be paid, and there was consequently an utter want of jurisdiction or power to make such an order. I say, without the least fear of successful answer, on logic or on authority, that it is simply an unthinkable thing that a court can order a sale to pay barred debts in good faith; or that such a sale, if effectuated, can possibly be made in good faith. Suppose a suit had been brought against this administrator himself to require him to account for the money which he says he received in this deed. Is it possible that any court for one moment would hold that the recitation in the deed would be conclusive, and not open to contradiction by him ? It has been, time out of mind, settled law that, unless the sale is confirmed by the court, the title of the heirs is not divested, and the purchaser acquires no title. No deed should ever be made to a purchaser until after confirmation, and confirmation never should be had until the purchase money has been paid. The most reasonable inference to draw from the proof in this record is that both the administrator and the purchaser knew that this money had not been paid, and hence wanted three months for a report to be made of this simple transaction, and hence further never dared to ask the court to confirm it. That confirmation is essential to divest the title of the heirs. See 2 Tiffany on the Modern Law on Real Property, § 462; 18 Cyc. pp. 787, 788; 24 Cyc. p. 33. And this is the declared rule in this state. Leonard v. Matthews, 40 Miss., 210, 228.

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, supra, he has had the candor, which does him honor, not to refer to that proposition in his supplementary brief. He was far too sound a lawyer to persist in that contention in the face of Huntington v. Bobbitt’s Heirs, in 46 Miss., 528. His reliance, as I understand his very able and ingenious argument, is not on the proposition, thoroughly exploded by the case of Huntington v. Bobbitt’s Heirs, that the debts were not barred, but that these plaintiffs were barred under the authority of the case of Fox v. Coon, 64 Miss., 465, 1 South., 629. But the answers to that contention are many and obvious: First, no chancery sale was involved in Fox v. Coon. Second, that was no suit to recover “ the possession of the land,” and the court said, in Morgan v. Hazlehurst Lodge, as I have pointed out, that § 2178 refers exclusively to suits to recover possession of the property, real or personal, actually and expressly naming the suits, to-wit, ejectment for land, and detinue or replevin for personal property. A bill in equity, such as filed in Fox v. Coon, has nothing to do with a suit to recover the possession of the land. Third, the bill in Fox v. Coon was filed on the theory that one tenant in common could not acquire at a tax sale title to the property, but would hold it as trustee for his co-tenants, and the bill was retained for the single purpose, stated in this opinion, of having the deeds reformed so as to limit the conveyance to such interest as they ought to have passed. And, finally, no statute of. limitations whatever was referred to, discussed, or involved in that case. It is too plain, it seems to me, for serious contention, that a bill in equity to cancel clouds has no sort of application to a statute of limitations applied to suits in ejectment to recover possession of the land.

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 these reversioners have brought any suit to recover the possession of this land until their right accrued upon the death of their mother, and only then, an action at law. Hoskins v. Ames, 78 Miss., 993, 29 South., 828, is conclusive of this proposition. The argument made by the learned counsel that there is a presumption of law, having positive evidential value, that the purchase money was paid, and the sale made in good faith, is wholly fanciful. It will not bear the test of examination. Counsel says that that would be the same sort of presumption which this court in Sheehan v. Kearney, 82 Miss., 688, 21 South., 41, 35 L. R. A., 102, said was sufficient to establish, unless rebutted, the presumption of sanity, and the same sort of presumption that would establish, prima facie, by the probate of a will, the evidence of its validity. As to the last point, § 1824 of the Code of 1892 is a perfect answer, since, by that section, the statute law is what gives the probate of a will prima facie validity. There is no such statute that, in a suit of this hind, there is any legal presumption, either that the purchase money was paid, or that the sale was made in good faith to arise, or be created by the mere recital in the administrator’s deed or .report of sale. This needs no further notice. As to the first branch of the proposition, the answer is equally perfect: That there is, in universal'law, a presumption that all men are sane. Where has there ever been found any such presumption, under this statute putting the burden on the purchaser, that a mere recital in a deed, or in a report, had the effect of establishing, prima facie, that the purchase money was paid, or that the sale was made in good faith? If these unfortunate 'reversioners are to lose their inheritance, in Heaven’s name let it not be upon presumptions — presumptions, too, which find no footing anywhere in the law. If the transcendently gifted counsel, who presented this cause for the appellants, in the oral argument, can find no better footing to support his cause than these illusory observations, as to some fanciful presumption of payment, and of good faith, to be derived from a mere recital in a deed or in a report, it is because there is no law supporting such notions; else he certainly would have found it. It is equally idle to attempt any confusion here by talking about the general jurisdiction of the probate court to order sales of land to pay debts That is a thousand miles from the mark. The point here precisely is that, granted such general jurisdiction, it has no power to exercise that jurisdiction, in a case where no debts existed to be paid, just exactly as the state has no power to order the sale of land for taxes where there are no taxes due.

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 purchase money was not paid. The direct converse of this has been, over and over, declared by our court. It is the heirs who can remain passive, not the purchaser. It is the purchaser who must show by affirmative testimony that the sale was made in good faith, and that the purchase money was paid, and not the heirs, who are required to show that the sale was not in good faith, and the purchase money not paid. It is true that the opinion seems to admit, in one part of it, the legal proposition that the burden is on the purchaser; but the admission is worth nothing in the face of the plain and obvious claim of the opinion, its manifest reasoning that that burden is, in fact, on the heirs, and not the purchaser, and that it is the heirs who must put witnesses on the stand to prove a negative. It certainly needs no further comment, when I cite the opinion of the supreme court of the United States in Clay v. Field, declaring expressly that the mere recital in the deed of the administrator that the purchase money was paid, and in the report of it to the court, that it was paid, even in a case where there was a confirmation of the sale is utterly insufficient, in the absence of a showing further than that, that the money was accounted for as applied on the debts of the estate, and declaring, in respect to that sort of proof, that “ under such circumstances, to hold that the purchase money is proved to have been paid would be to disregard both the words and the intent of the statute,” and then find my Brethren answering that square decision of the point by the light remark that it has no application to the case at bar. It is on all fours in respect with the Clay-Field case, except that it is stronger than that case against the application of the statute. It is idle to appeal to reason any further on this line. I pass from this proposition.

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 the time this petition was filed, the statute of limitations was not pleaded, and, even though the accounts filed with the petition might appear to be barred, the statute of limitations was not set up, and, upon the showing made by the administrator that there were debts, the decree of insolvency was made, and the property ordered to be sold, and the sale took place, so that we have the property sold by order of the probate court,” etc. Was ever such a non sequitur heard of? It is admitted that the debts on their face show they were barred, and yet it is insisted that that made no difference, because the administrator did not plead the statute. My learning has always been, on this subject, that it was the duty of the admipistrator to protect the estate, for which he was the fiduciary, and that it was his special duty to plead the statute of limitations against all debts which were barred, as held in this very estate in the Bobbitt’s Heirs case in 46 Miss., 528, supra. I understand the power of the probate court to sell land to pay debts to depend on the fact that there were debts due to be paid, not on the statement of the administrator the one way or the' other, and surely not on his failure to plead the statute the law made it his sworn duty to plead. The showing made by the administrator! He could have made no showing that would not have manifested on the very face of every debt the fact that it was barred.

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 statute does not say that it was not applied to the sale of a reversion or a remainder.” And still again the court says: “ To follow out the-opposite conclusion would mean that § 2173 should have added to it, by this court, that this section shall not apply to the sale of a reversionary interest, and would involve additional judicial legislation.” This is so extraordinary an announcement that it is difficult to understand how the court could fail to see the utter fallacy involved in the declaration. It is I, and not the majority of the court, who insist upon standing squarely by this statute as written. It is the majority of the court, and not myself, who do the judicial legislation. It is they, not I, who interpolate into this statute what was never written there, and was never intended to be written there. It is gravely said that the statute does not say that it shall not apply to the sale of a reversion or remainder. The statute expressly declares what it does apply to, and it does not apply to anything which is not expressly stated it applies to: The majority write into the statute these words, “ except that as to reversioners this statute shall take effect within one year from the termination of the life estate.” That is exactly what is done, and that, I say, is emphatically judicial legislation pure and simple. I' stand by the statute; the majority repudiate it, and add to its already unwarranted harshness, by ingrafting exceptions not contained in the statute itself. I have heretofore pointed out the harshness of this statute. My Brethren speak in great praise of its “ beneficent operation,” its “ wholesomeness,” etc'. The codifiers of the Code of 1880, 1892, and the Code of 1906, and the Legislature which adopted them, did not seem to think it so beneficent. They changed one year to two years and made the two years’ period begin from possession taken by the purchaser, crystallizing into law the announcement on that point in Morgan v. Hazlehurst Lodge. Suppose a suit brought by a minor, after he became of age, more than one year after the date of sale; what would -be the result ? He would be clearly barred, and why ? Because the statute most unreasonably contains no exception in favor of minors. The majority stand on the statute when it destroys the rights of those under disability — minors, lunatics, etc.— if the suit be brought within one year after the sale, but they repudiate the statute, as written, when they apply it to an action brought by reversioners whose right to sue never accrued until thirty years after such sale. They say Judge Simrall held that this statute began to operate from the date of the death of the life tenant. I deny emphatically that the court held any such thing in that case. Every opinion must be limited to the case made by its facts, and the case made by the facts in Morgan v. Hazlehurst Lodge was not a case where reversioners sued, and the remarks of Judge Simrall were made as applicable alone to persons having a present right to sue for the land. He had not the remotest reference to a suit brought by reversioners. It certainly is hard.enough to have the case wrested from its moorings by applying a statute intended to bar persons having a present right to sue within a year from the sale, but what shall be said when the majority turn upon the unfortunate dissenter and charge him with doing what they themselves have done, to-wit, interpolate into the statute words that are not there. Of course, the statute does not say that it does not apply to reversioners. It was wholly unnecessary to say that. The nature and character of their estate established their want of any present right to sue. It defined to whom it applied. It applied alone to all persons who had a present right of action beginning from the date of the sale, and to no person who did not have a present right of action at the date of the sale. I have referred to the reasons given by Judge Simrall that there might be some remedy where a purchaser was about to lose his money because of the invalidity of a sale set aside within a year. I have further shown that the reason thus given shows the inapplicability of this statute to an attack made thirty years later. ' It is incomprehensible to me how my Brethren can fail to see that they are directly and squarely adding to this section, and stand not only not within its letter, but, as just shown, not within its spirit.

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 shall not be computed as any part of the period of time limited by this chapter for the commencement of such action.’ ” “ If,” say the majority, “ the court had not already settled this question, the statute itself settles it. When the plaintiffs could not sue, this statute protected them and kept alive .their right until such time as they could sue.” I confess my utter inability to appreciate this reasoning’. It is beyond me. The profession will certainly be startled when they hear this construction of this familiar § 2170. I do not think it ever occurred to any one that this section ever had any reference to anything else except the order, decree, or process of some court, or some positive prohibition of statute law. No one pretends there was any positive statute provision of law preventing these reversioners from suing, or any order, decree, or process of any court preventing them from suing. The very thought of this § 2170 is that the persons prohibited from suing, by positive statute law, or by process or by decree of a court, are those who had a present right of action, and who were kept from exercising that right of action by the positive statute law, or by order, process, or decree of some court. In other words, the statute was intended to protect those who had a present-right of action from having the statute of limitations run against that present right of action, during some period within which the positive statute-law or some order, decree, or process of a court kept them from exercising their right; in other words, from suing. It would have been very hard, if one having a present right of action was prevented from suing by reason of some positive statute law, or by the order of some court, and in the meanwhile to allow the statute of limitations to run against his right of action, so as to finally bar him. That was the evil intended to be cured by § 2170. It never had the remotest reference to a right of áetion that did not presently exist, when the order of the court, or the positive statute law, was made or enacted. The resort to such a desperate strait as the invocation of § 2170 to bolster up the case of the majority is conclusive evidence that they were hard bestead. It is too plain for discussion that these appellees, reversioners, never had any present right of action to be prohibited by any court, or by any positive statute law. They’ could not have sued until their mother died, because of the nature of their estate as reversioners; not because any court had prohibited them from suing, or because there was any statute law prohibiting them from suing. There was no need for any order of the court or for any statute. They were prohibited by the very nature of the estate they held, a reversion, and as reversioners they had no present right of action to be prohibited or restrained by any positive statute, or by order of the court.

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 sale at all. There was no purchase, because there was no sufficient proof of the payment of the purchase price, and there is no proof of the payment of the purchase price except the recital by the administrator in his deed, which is a mere contradictable receipt as any other receipt is, and his report was never called to the attention of the court now acted on by it.

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 jurisdiction which, a probate court had to order land sold for the payment of debts, and the utter want of jurisdiction that same court would have to decree any sale, where t-here had been no notice served upon the parties defendant; and can they not also see that, whilst the probate court has a general jurisdiction to order the sale of lands to pay debts, it cannot exercise that jurisdiction, it has no power to exercise that jurisdiction, by ordering a sale to pay debts, where, concededly, all debts were barred long before the decree ? The confusion into which they have fallen is palpable. They are manifestly confounding and confusing together two wholly different things, to-wit, the general jurisdiction which a probate court has to order land sold to pay debts and to administer estates, and the absence of the right to exercise that jurisdiction, in a particular case, where it was lost either because there was no notice served on the parties to be affected, or because there was no power to sell, since there were no debts to be' paid. I confess my amazement at the inability of the court to apprehend this palpable distinction.

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.

Case Details

Case Name: Jordan v. Bobbitt

Court Name: Mississippi Supreme Court

Date Published: Oct 15, 1907

Citation: 45 So. 311

Court Abbreviation: Miss.