56 Miss. 10 | Miss. | 1878
delivered the opinion of the court.
Various errors and irregularities occurred in the proceedings condemning the lands of G. W. Summers, deceased, to be sold for the payment of his debts. At the sale they were bought by R. S. Drone, ostensibly for himself only, but really for himself and the administrator, Sivley, to whom, shortly afterwards, he conveyed a two-thirds interest. Drone and Sivley held the parcel of land here involved for about two years, and then sold it to one McNair, who, some years later, sold to defendants in error.
The heirs of Summers bring this action of ejectment, basing their right to recover upon the legal defects in the proceedings condemning the lands of their ancestor, and upon the collusive arrangements between the purchaser, Drone, and the administrator, Sivley.
The judicial sale took place in December, 1872. This action was instituted in July, 1877. Defendants pleaded the one year’s
But the requirement of the statute is, that “ the sale shall have been made in good faith, and the purchase-money paid.” In this case, the purchase-money was paid by actual payment of the .pro rata decreed oil all the probated claims against the estate except those held by Drone and Sivley, and by the ex-tinguishment of these in the reception of the land. We think, therefore, that the requirement that the purchase-money should be paid is fully, met.
Does the fact that the administrator was interested in the purchase so deprive it of the element of good faith as to preclude, a reliance upon the statute ? We think so, if the land were still in his possession, or in that of his confederate in the purchase. But in this instance five years intervened between the administrator’s sale and the purchase by these defendants. They are not shown to have had any knowledge or suspicion of the fact that the administrator was personally interested in his own sale. Indeed, the administrator and Drone both protest to this hour that he was not, and it is only by a careful scrutiny of various outside collateral facts that we have been forced to a different conclusion. Upon the face of the papers, Drone alone was purchaser. It was he who paid the money and received the deed, so far as the records show, though in reality two-thirds of the money was advanced by the administrator. Under these circumstances, we think that the defendants may successfully plead the statute referred to. A sale at which the administrator making it becomes the purchaser is not void ; it is voidable only, at the election of the parties in interest. Where those parties suffer the property to remain in the hands of the purchasing administrator sufficiently long for a statute of limitations to bar them, they certainly could not recover from sub-
It is urged that sect. 2173 does not apply to minors and married women ; or, rather, that such persons must have, under sect. 2156, one year after the removal of their disabilities within which to bring their suits. This is erroneous. Sect. 2156 applies only in express terms to “the actions before mentioned,” all of which are personal actions. The limitations as to real actions are found in sect. 2147, which contains its own exceptions as to disabilities. Sect. 2173 provides for a special and exceptional state of case, — namely, to actions for the recovery of property sold by an administrator or guardian, under a decree of the Probate or Chancery Court. The proceedings for such sales are in the nature of in rem proceedings. All parties are supposed to have notice of the judicial seizure of the property, in making the sale; they are required to assert their rights within one year thereafter, and the Legislature saw fit to make no exception in favor of minors and married women. The constitutional power to apply statutes of limitation to minors and married women is undoubted. We treated this statute sub silentió, as applicable to them, in Morgan v. Hazlehurst Lodge, and Hall v. Wells, supra, and are satisfied of the correctness of that ruling.
Judgment affirmed.
