McAllum v. Spinks, 91 So. 694

91 So. 694 | Miss. | 1922

Sykes, P. J.,

delivered the opinion of the court.

William McAllum, a resident of Humphreys county, died intestate there, leaving at the time of his death 80 acres of land, certain personal property, and some money in bank. At the time of his death he' left surviving him a son by the name of Willis McAllum, a resident of Kemper county. Shortly prior to his death William McAllum had contracted a ceremonial marriage in Humphreys county with a woman by the name of Pearl, who was living with him at the time of his death. By another woman he also left two minor children. Shortly after the death of William a man by the name of Lumbley, who held a deed of trust upon William’s land, went to Kemper county and purchased Willis’ interest in this land for four hundred dollars. AVillis, becoming dissatisfied with his sale, thereupon made a contract with Mr. Spinks, an attorney, employing him to attempt to get the land back and attend to a proper administration of the estate of his father, and empowering Mr. Spinks to fully represent him as his agent and attorney in fact in the matter. For which services he deeded to Mr. Spinks a one-half interest in the estate. Willis advised Mr. Spinks as far as he knew about his father’s estate, and agreed to go with him to Humphreys county to make an investigation. 'When the time came to go, however, Willis would not go, and Spinks went alone. He had a conference with Air. Lumbley in Jackson abont compromising with him. At this time it was the contention of Willis and Spinks that Lumbley had misrepresented the amount-of his debt, the value of the land, and the money on hand at the time of William’s death. In other words, that Lumbley by fraud, misrepresentation, and deceit had obtained a deed from AVillis McAllum to his father’s estate for a grossly inadequate consideration. Shortly after Spinks returned to Kemper county Lumbley wrote him a letter, in which he agreed to quitclaim all of this property, consisting of the estate of William McAllum to Willis McAllum and Spinks for a consideration of three thousand, two hundred and fifty dollars. This offer of settlement was discussed between Spinks and Willis Mc-Allum and Mr. Rosenbaum, a merchant of that county, was called in to the conference. The uncontradicted testimony shows that the matter was fully discussed among these three parties, and it ivas finally agreed upon among them that it aa’ouIc! be better to accept the Lumbley offer than to litigate the matter. Mr. Spinks paid his one-half of the money in cash. Mr. Rosenbaum loaned the other half to Willis McAllum, with the agreement, subsequently reduced to Acriting, that when Willis should repay this amount Avith interest to Rosenbaum, Rosenbaum would then deed him the half interest he had acquired in this estate. Thereupon Lumbley by quitclaim deeded all of the property to Spinks and Rosenbaum. He also assigned to them the note and deed of trust held by him. Spinks qualified as administrator of the estate in Humphreys county. Thereafter Spinks and Rosenbaum had the trustee in the deed of trust to sell the land, at which sale they purchased it for something over five thousand dollars, and a trustee’s deed Avas made to Spinks and Rosenbaum. The administration of this estate is yet pending in Humphreys county.

There are really two separate suits presented by this appeal. These suits were consolidated and trial by agreement in the chancery court. The first is the suit of Willis McAllum against Spinks, Rosenbaum, Lumbley, and the trustee in the deed of trust. The second is the suit of Pearl McAllum and the tAvo minor children against the same defendants and the lessee of the land. The relief prayed in both bills is practically the. same, namely, that all the deeds be set aside, that the correct amount due under the deed of trust of Lumbley be ascertained, and each complainant seeks to be declared the true and lawful heir of William. Upon the hearing the chancellor dismissed both bills. From Avhich decree this appeal is prosecuted.

It is first necessary to ascertain who is the true and lawful heir, or heirs, of William McAllum, and when this has been done the other questions to be decided by the court are very much simplified. Pearl ivas William’s fifth wife, and William was Pearl’s third husband. We shall first deal with the Avives of William. The record shows that he married a woman in Kemper county by the name of Neela Nelson, from Avhom he was divorced in 1889. It is the contention of the appellant that this decree is void: First, because the original summons for Neela, which Ave have before us, does not noAV contain the seal of the chancery court; and, second, because there AA'as a defective service or return of the sheriff upon this subpoena. This return reads as follows: “Executed by personal service and copy. Nov. 12th, 1889” — duly signed, etc. Pearl, through her attorneys, purchased from Neela Avhatever interest she might have in this estate, consequently Pearl claims also because of this purchase through Neela. This court has tAvice held on direct appeal by a defendant that a writ is bad which does not contain the seal of the court, or a statement of the fact if there Avere no seal. Pharis v. Conner, 3 Smedes & M. 87; Burton v. Kramer, 123 Miss. 848, 86 So. 578. If this were a direct appeal by Neela McAllum, under these authorities the decree of divorce would have to be reversed and the cause remanded. This is not such an appeal; neither is it a direct attack upon the decree, but is in every sense of the Avord a collateral attack. In this case the original papers in this divorce proceeding that were found in the files of the chancery clerk’s office of Kemper county are before the court for inspection. The chancery court’s subpoena states that it is “given under my hand and seal, of said court, affixed and issued the 8th day of November, 1889.” The decree recites that, “This cause coming on for hearing on bill and proof and the court fully understanding the same,” it then dissolves the band of matrimony theretofore existing betAveen William and Neela, and w¡is duly signed by the then chancellor of that district. The. testimony of Neela Avas taken in the case. She admits that the deputy sheriff: came to her house and told her something about William getting a divorce from her. She does not remember exactly what was said, nor whether any paper was given her at that time.

The court before hearing this cause upon oral testimony necessarily had to adjudicate the question as to whether or not the defendant had been properly subpoenaed, and, while the decree does not expressly recite the proper service of process upon the defendant, yet, by assuming jurisdiction of the cause and granting the divorce the court necessarily held that the defendant had been properly served with process. If at the time of the service of this subpoena upon the defendant there was no seal of the chancery court upon it, in this collateral attack it will be presumed, in the language of the court in the case of Cocks v. Simmons, 57 Miss. 196, that—

“The court may have ordered, as ivas its plain duty,” a proper subpoena with the seal upon it, “which may have been returned properly executed; and in the lapse of time which has since occurred it may have been lost from ’the files. Especially would this be a reasonable presumption when we take into consideration the known carelessness with which court papers are kept during the progress of a cause, and the custom by which they are frequently taken from the clerk’s office by the attorneys and other parties interested. ' But, however this may be, it is well settled that in collateral proceedings such a decision is conclusive of the jurisdiction of the court. Whether the court had the proper evidence before it on which to base such a decision cannot be inquired into collaterally, for that would be a question of error or no error, which manifestly can be entertained only in a court sitting to review the proceedings.”

In this case thirty-three years have elapsed since this decree was signed by the chancellor. It would be a legal absurdity; in the language of Judge Arnold, it would cut the throat of reason and knock the brains out of common sense, to hold that because this subpoena has not now upon it the seal of the chancery court this divorce was a nullity and could be thus collaterally attacked.

The case of Cocks v. Simmons, supra, is copiously quoted froin in the opinion of the court in the case of Hester v. Hester, 103 Miss. 13, 60 So. 6, Ann. Cas. 1915B, 428.

We think the execution of the summons was a substantial compliance with section 1527, Code of 1880. It means that the defendant was personally handed a copy of the subpoena. However it may be, it could only at most be an irregularity, was subject to amendment at the time the cause came on for trial, and cannot be collaterally attacked in this proceedings. The record further shows that Neela herself treated the divorce decree as valid and married again thereafter.

Wife No. 2 of William was named Sue. He married her after being divorced from Neela. She is the mother of the complainant Willis McAllum. William was divorced from her after having married Pearl. He was divorced from Sue .in Kemper county a few months before his death. It is contended by the appellant that there is no competent testimony of this marriage. The record, however, abounds -with testimony from brothers and relatives of William to the effect that he and Sue were duly married in Kemper county, and lived there a while as husband and wife. Of course, the bill for divorce of William states this fact, and the decree so adjudges. None of this testimony was objected to. In fact it Avas all competent as proof of this marriage.

In the case of Henderson v. Cargill, 31 Miss. 409, the proof of marriage Avas similar to that made in this case, and in the opinion the court in part said: “In all cases, except in actions of crim. con., and prosecutions for bigamy, the fact of marriage may be established by evidence of the acts and declarations of the parties, by proof of the general repute in the family, and by proof of the declarations of deceased persons, who were related to them by blood or marriage.”

It is unnecessary to deal with Avives Nos. 3 and 4. The record shows, and it is not controverted by the appellant, that the children, Florence and Jab,' issue of the fourth marriage, are illegitimate.

The appellants insist that, -even though, at the time of the ceremonial marriage between Pearl and William, William was not divorced from Sue, after he obtained the divorce he and Pearl mutually agreed to live together as husband and Avife, and in fact did so up until the time of the death of William; that this agreement, entered into in good faith, constituted a valid common-laAV marriage. It is unnecessary to decide this question, because at that time Pearl Avas married to a man by the name of Lee Blockett, from whom she was not divorced.

We Avill iioav discuss the marriages of Pearl. She Avas three times married. Her first husband was Lee Blockett. Without any divorce from Lee, she next married a man by the name of Howard. It will, hOAvever, be unnecessary to discuss the Howard marriage. Her marriage Avith Lee Blockett is overwhelmingly shown in the record, and admitted by her. She testified that she had never gotten a divorce from him, and that so far as she knew he had never gotten one from her; that before marrying William she had heard through her mother that some one had informed her that Lee Avas dead. The appellants introduced some testimony to the effect that there were two Lee Bloeketts and Íavo Pearl Blocketts, the men being cousins. The testimonyj hOAvever, was overAvhelming, and the chancellor so found, that the Lee Blockett who married this complainant was not dead. In fact the testimony shoAVs that at the day of the trial of this case in Greenville both Pearl and Lee Avere in the city, though they failed to appear at the trial, despite the fact that process had been issued for them. The records of the various counties in Avhieh both Pearl and Lee had lived from the time of their moving to the Delta until the time of Pearl’s marriage to Williams Avere introduced in evidence, ■ and showed that there had been no divorce betAveen this couple. The presumption was, of course, that Pearl’s marriage to William was valid, and the burden of proof was upon the defendants to show its invalidity. Wilkie v. Collins, 48 Miss. 496; Railway Co. v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; K. of P. Lodge v. Tucker, 92 Miss. 501, 46 So. 51. This burden was met by showing the marriage, that Lee was alive, and that they were not divorced. It follows that because Pearl had a living husband, her marriage with William ivas void. And it necessarily follows from this that Willis McAllum is the sole and only heir at law of William McAllum, deceased.

As to any fraud or deceit practiced upon Willis McAllum by his attorney, Mr. Spinks, the testimony of Willis himself, as does all of the other testimony in the case, sIioavs that Mr. Spinks consulted and advised with Willis about everything done by him in the matter, from his consultation with Mr. Lumbley as Avell as his administration of the estate. Whether or not Mr. Lumbley practiced any fraud or deceit in the first instance upon Willis .is not a matter of material importance in this case. At the time Mr. Spinks Avas employed, there was at least a controversy as to that fact between Willis and Lumbley, and Spinks, after obtaining all of the information he could about the matter, advised Avith Willis and his friend Mr. Rosenbaum as to whether or not they Avould litigate with Lumbley or compromise the case with him, and they all three agreed that it Avas better to compromise than litigate. In fact it cannot be said from this record that Mr. Spinks and his associates did not exercise good judgment in making the compromise. Certainly he was guilty of no bad faith, fraud, deceit, or even negligence in the matter.-

The sale under the deed of trust was made for the benefit of Willis, as Avell as Mr. Spinks, and the interest of Willis was in no Avise prejudiced by this sale. He is amply protected through his Avritten agreement with Mr. Rosenbaum. Since he is the only party (complainant) who has any interest in the estate, and he cannot complain, it it unnecessary to deal further with this sale.

This record reflects the fact that the acts and doings of Mr. Spinks as administrator are shown by the administration proceedings, and the testimony here does not shoiv that Willis is entitled to any relief whatever in this proceeding.

The learned chancellor of the court below so held, and the decree is affirmed.

Affirmed.