Reynolds v. Wilkinson

81 So. 278 | Miss. | 1919

Lead Opinion

Smith C. J.,

delivered the opinion of the court.

The certificate of the clerk below to the record in this case is in the usual form, setting forth that it contains a true and correct transcript of the proceedings as the same now appears on file in his office.

The final decree sets forth that the cause was heard on the pleadings and proof, but the record contains only the pleadings, an exhibit thereto, and the court’s decree. This motion filed by appellees alleges that on the trial in the court below evidence both documentary and oral was introduced, and that the oral evidence was not preserved by a bill of exceptions or otherwise, and prays that an order be entered here correcting the clerk’s certificate so as to make it read as follows:

“I, Gr. M. Causey, clerk of the chancery court of said county and state, do hereby certify that the within and foregoing pages contain a true and correct transcript of a part of the proceedings in the matter of Mrs. Viola Reynolds et al. v. T. J. Wilkinson et al. had and held before the honorable chancery court of Amite county, Mississippi, and which proceedings are now on file in this office.”

Conceding for the. sake of the argument that the certificate of the clerk Below to a transcript of a record filed By him in this court may be corrected without his consent on a motion of the character here under consideration, the certificate complained of is in proper form, and is the only certificate the clerk can make, unless he has omitted from the transcript a part of the record as it appears on file in his office.

The procedure for enabling the court to determine whether a clerk below has ommitted from the transcript of the record in a case appealed to this court a necessary part thereof, and which is "on file in his office, is by a writ of certiorari directing him to send up the alleged missing parts, and upon his reply thereto without a compliance with the order therein contained the court can determine whether or not the transcript of the record as certified by the clerk is in fact defective, and, if so, whether he can remedy the deFoct.

When the cause is submitted to us for trial on he merits, we cannot, of course, in the absence of a transcript thereof, consider any assignment of error the determination of which will require an examination of the evidence on which the decree in the court below was rendered.

Overruled.

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Opinion on the Merits

IN BaNC-ON THE MERITS.

This is a suit for partition in which the appellants were the complainants and the appellees were the defendants in the court below. The bill of complaint, among other things, alleges in substance that the complainants are children and grandchildren of Mica] ah Wilkinson, by whom the land in controversy was owned at the time of his death in August, 1868, and which was devised by items 2 and 4 of his will, which was probated and recorded, as follows:

“Item 2. Further that it is my will and desire that the remainder of my estate, both real and personal he kept together under the control and management of my executors for the use and benefit of my wife and minor children, that is to say, I will and direct my executors to keep on and carry on the business of farming, to the best of their judgment and. that the proceeds of the crops and the crops by them raised on said real estate is to be employed and used by said executors in the maintenance and education of my minor children, their education to be good, plain English education and for the support of my wife with said children until my youngest child arrives at the age of twenty-one years or is lawfully married, then 'and in that event, it is my will that should my said wife still he living, my executors hereinafter to be mentioned, shall continue to keep up the said farm, and all the personal property, not otherwise disposed of under the provisions of this will and manage the same to the best of their judgment for the support of niiy said wife and the keeping in repair the said premises aid in keeping up the stock, farming utensils, etc., of said plantation in the way and manner best calculated in their opinion to promote the interest of the legatees under this will. At the death of my said wife it is my will that all of my estate, both real and personal, be sold upon such terms as my executors surviving my said wife, shall think most advisable and that the proceeds of said sales of both real and personal property, I will and direct to be equally divided between all my children (with the exception of Nathaniel S. Wilkinson) each to share and share alike in the division of the proceeds of said sales,” etc.

Item 4. In case of the death of my wife before the youngest child arrives at the age of majority, it is my will that my estate then be sold and disposed of according to the direction of item two of this my will.”

The bill further alleges, in substance, that the land was sold to the state on the 10th day of May, 1875, for the taxes due thereon for the year 1874, and that the defendants now claim the land by a purchase from the state, but that “the sale (to the state) was void, being made on a date other than the date fixed by law for sales for taxes delinquent for the year 1874, and that the list of lands struck off to the state was not filed as required by law.” The prayer of the bill was that the appellees’ claim to the land be canceled as a cloud upon the appellants’ title thereto, and that the land be sold for a partition according to the provisions of Mica-jah Wilkinson’s will.

Separate answers were filed by the appellees in which they admitted the sale of the lands for taxes to the state in 1875, but denied that the “sale was void and conveyed to the state no title,” but did.not deny that the “list of lands struck off to the state was not filed as the law directs.”-

These answers also attempted to, and we will assume did, set up the various statutes of limitation and adverse possession, and several of the answers also allege that the claim of title to the land by the appellees had been known to and acquiesced in by the appellants for many years.

The bill was filed in January, 1916, and alleges that Mrs. Wilkinson died on the 29th day of September, 1915, which allegation is not denied by the answers.

It appears from the answers that the executors appointed by the will of Mica]ah Wilkinson qualified and entered upon the discharge of their duties.

On final hearing the bill was dismissed.

The cause was tried in the court below on bill, answer, and proof, but the evidence introduced was not preserved, so that the decree there rendered must be affirmed if it can be supported by any evidence which could have been introduced under the pleadings.

The appellees’ contentions are that under the allegations of their answers they could have introduced evidence- showing: First, that the sale to the state for taxes for May 10, 1874, was valid; second, that they had acquired title by adverse possession; and, third, that the appellees are estopped from setting up - any title to the land for the reason that it may have appeared from the evidence that the appellants had with their knowledge and without any objection from them spent considerable money in improving the land under their claim of title thereto.

Leaving out of view the contention of appellants that the bill alleges and that the answers do not deny that the sale for taxes was made on the wrong day, the court below should have held that this sale was void under the provisions of section 1698, Code of 1871, which now áppears as section 2933, Code of 1906 (section 5268, Hemingway’s Code), for the reason that the bill alleges, and the answers do not deny, that the list of lands struck ■ off to the state was not filed as the law directs, which allegation, under the provisions of section 584, Code of 1906 (section 344, Hemingway’s Code), must be accepted as true without reference to any evidence which may have been introduced in denial thereof. Colbert v. Henley, 64 Miss. 374, 1 So. 631; Railroad Co. v. McLarty, 71 Miss. 755, 15 So. 928.

The right of the appellants to the estate in remainder devised to them by the will here in question is not barred by any of the statutes of limitation, for the reason that their right to the possession thereof did not accrue until the death of their mother, so that the statutes of limitation could not be set in motion until the happening of that event. This is true whether the devise is, as contended by counsel for the appellants, direct to the appellees of a legal estate in remainder, or, as contended by counsel for the appellees, is in trust for them of an equitable remainder. Jordan v. Bobbitt, 91 Miss., 45 So. 311; Clark v. Foster, 110 Miss. 543, 70 So. 583. As pointed out in Clark v. Foster, section 3123, Code of 1906 (section 2487, Hemingway’s Code), has no application to the rights of a remainderman under a devise or grant in trust to take effect only after the termination of a particular estate until the rights of the remainderman fall into possession.

But it is said by counsel for the appellees that it may have appeared from the evidence that Mrs. Wilkinson died more than ten years before the filing of the appellants’ bill, and that they had been in the adverse possession of the land since her death, so that the period of time necessary to bar the appellees’ title would have elapsed after they became entitled to the enjoyment of their estate. If such evidence was in fact introduced, it could not have been considered by the court, for the reason that the allegation in the bill that Mrs. Wilkinson died on the 29th day of September, 1915, which was less than four months before the filing of the bill, was not denied in any of the answers. Section 584, Code of 1906 (section 344, Hemingway’s Code); Colbert v. Henley, 64 Miss. 374, 1 So. 631.

The appellees’ third contention is without merit for the reason that the appellants’ title was of record. Staton v. Bryant, 55 Miss. 261; Mortgage Co. v. Bunckley, 88 Miss. 641, 41 So. 502.

It appears from one of the answers that two hundred and forty acres of the land described as east half of the southeast quarter section 31, and southeast quarter of section 35, township 3, range 4, was sold under order of the chancery court by the executors of the will of Micajah Wilkinson to pay debts due by his estate, and that the present claimants thereof hold by mesne conveyances from the purchaser at that sale. If the evidence supported this allegation, and we must assume that it did, the appellants have no title thereto, and this we understand their counsel to concede, so that the decree of the court below will be affirmed in so far as it affects this two hundred and forty acres of land, hut in all other respects if will be reversed, and the cause will be remanded.

Affirmed in part, and reversed and remanded in part.

Affirmed.

Reversed and remanded.