86 Miss. 619 | Miss. | 1905
This is an action of ejectment for a tract of land in Yalo-busha county, described as the south half of section 3, township 24, range 1, east. Defendants pleaded the general issue. • It was agreed that Aaron McOameron, deceased, was the common source of title. All of plaintiffs but J. M. Shannon were children of McOameron. Shannon deraigned title to an undivided interest through conveyances from McCameron’s other children. Defendants deraigned title through a sale made by E. B. Her-ron, administrator of McOameron, under an order by the chancery court of Yalobusha county, rendered March 30, 1882, which directed sale of said land, including the estate’s reversion in the dower of the widow of deceased, but excluding therefrom the homestead exemption, for payment of debts. The administrator’s report of sale showed that he sold “the following lands of said estate — to wit, S. í of Sec. 3, T. 24, B. 1, in said county of Yalobusha, first excepting and reserving from sale the homestead exemption of decedent and his widow’s dower, when W. 0. Bowland became the best bidder and purchaser.” The report
It is urged against the record and decrees in the chancery proceeding that the entire proceeding was void, and the sale by the administrator a nullity, for the want of service of citation upon the heirs of McOameron to show cause why sale should not he made. ISTo citation was found in the file, nor was any note of the issuance and service of citation found in the general index to estates. The decree ordering sale, however, recites that it appeared to the satisfaction of the court that summons had been issued and duly served on all persons interested in said estate. This is sufficient to sustain the jurisdiction of the court as to this objection, as against a collateral aftack. Cocks v. Simmons, 57 Miss., 183; Silvey v. Summers, 57 Miss., 730.
It is also urged that the sale was void because it does not appear that the administrator executed the statutory bond in the penalty of $500, as required by order of the court. The defendants were permitted to show by parol, by the testimony of
In the view of this court, the sale was void because of the failure of the administrator to comply with sec. 18, art. 12, Constitution 1869, which required all lands sold in pursuance of decrees of courts or execution to be divided into tracts not to exceed one hundred and sixty acres. It is perfectly manifest from the record that the administrator offered for sale, and sold, the entire half section in a body, excepting and reserving the homestead exemption and the widow’s dower, which were not judicially ascertained and fixed.
It is insisted, however, by appellees that all omissions and defects in the record of the chancery proceeding are cured by the two years’ limitation provided by Code 1880, § 2693, which declares that “no action shall be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith, and the purchase money paid, unless brought within two years after possession taken by the purchaser under such sale of such property.” It has been held by this court that this section applies where sales have been made in violation of sec. 18, art. 12, Constitution 1869. Bradley v. Villere, 66 Miss., 399 (6 South. Rep., 208).
We therefore hold the sale void because made in violation of a provision of the constitution, and it was not protected by the two years’ limitation, because not made in good faith. Subsequent vendees cannot shelter themselves behind the two years’ limitation where the original purchaser dould not. It is only the good faith of the parties to the chancery sale that is to be considered in determining as to whether the bar of the two years’ statute can be invoked. The good faith of subsequent vendees has nothing whatever to do with the application of the statute. Jeffries v. Dawdle, 61 Miss., 508. Her can the appellees (defendants below) successfully invoke the doctrine of innocent purchaser for value. Deraigning title through a chancery sale, they were charged with notice of everything in the record of the proceedings leading up to the sale and conveyance. It was manifest from the record that the sale was made in disregard of a provision of the constitution applicable thereto. Defendants are charged in law with a knowledge of this fatal defect in their title when they acquired it. Hence their title must fail.