Theobald v. Deslonde, 46 So. 712

Whiteielb, C. J.,

delivered the opinion of the court

The petition under which this land was sold was manifestly bottomed on Code 1892, § 2205 (Code 1906, § 2122), and just as manifestly, was not brought under Code 1892, § 2191, (Code-1906, § 2113)., The petition itself expressly prays for process for three near relatives of the minors to be served under this-section 2205, naming the section. The allegations required to-be made under section 2113, to the effect that, if the personalty of the estate and tbe rents and profits of the real estate are not sufficient for tbe maintenance and education of tbe ward, tbe court may, on investigation, decree the sale, etc., are not in tbe petition in this case; so that it is perfectly clear that tbe effort was to sell the land under and by virtue of the provisions of Code 1892, § 2205; and yet the record discloses affirmatively tbe fact that no summons was issued or served, except upon Dahlgren, who procured tbe sale. It is true the petition alleges that these three minors had no other relative in tbe state, except A. M. Dahlgren; but it also shows plainly that these three minors were brothers and sister, and we think it is clear under this statute that in such case each minor bad tbe right to have tbe other two cited as its next of kin. As well, said by counsel for appellees, if tbe interest of only one of the minors bad to be sold, it would certainly have been necessary to summon tbe other two, and, if tbe interest of one could not be sold without citing tbe other two surely the interest of all could not be sold without citing any one of tbe three. We think the order of sale was absolutely null and void for this reason. Tbe court bad no jurisdistion over the parties.

Tbe record further discloses affirmatively that the land is really located in section 35, whereas tbe petition and the decree for tbe sale of tbe land both describe tbe land as in section 3. Tbe additional effort to fix tbe description by showing that the land commenced at tbe southwest corner of land owned by Morgan on the Gulf of Mexico is unavailing. There might have been a dozen such lots of that size beginning on the Gulf of Mexico. Nor is the matter helped by the reference to tbe land as being the same land conveyed by Tylor to Hollingsworth by deed dated August 25, 1813, and recorded in tbe record of deeds of said county in Book 8, page 211, for tbe obvious, reason that page 211 of Book 8 contains tbe record of no such deed. It thus appears that the record affirmatively discloses that tbe land actually belonging to the minors was not sold or conveyed at all. No title whatever passed, of course, since the petition and the decree both recited the land which the decree ordered, to be sold to be in section 3, when in truth the land intended to be sold was in section 35. For this reason, also; the decree is an absolute nullity, since it conveyed no title whatever to the land the minors really owned, but was an effort to sell land in section 3, which was not the land belonging to these three minors.

The brief filed by the learned counsel for the appellants announces a very familiar and elementary rule of law, that these innocent purchasers for value without notice would be protected as against any collateral attack on this decree for the sale of the lands, if such decree was merely voidable or irregular; but the other principle is equally well settled, to wit, that, where a decree is absolutely null and void, it is subject to attack anywhere, collaterally or otherwise. We have several times" pointed out the distinction between the jurisdiction of a cohrt over the subject-matter generally and the power of a court having jurisdiction over a subject-matter generally to exercise that jurisdiction in a particular way. See, for a full discussion of this subject, the opinion of this court in Chester Burden v. State, 92 Miss., 45 South. 1. Of course, the chancery court had jurisdiction generally to entertain petitions under Oode 1892, § 2205, to sell the lands of minors under the conditions prescribed by that statute; but the exercise of that general jurisdiction, in order to be valid, had to be in conformity with-the law as announced in section 2205. Three of the near relatives had to be cited and the court had no power to make a sede at all without conforming to this requirement, and the decree of sale, -therefore, when the record itself affirmatively discloses the fact that there was no compliance whatever with this requirement, was a decree beyond the power of the court to enter. It was absolutely null and void; not merely irregular. And so, also, the decree of the court to sell land that did not belong to these minors passed no title whatever, and, for that reason, also, the decree was void. The distinction, as stated in the outset, is between a decree which is merely irregular, and which cannot, of course, be assailed collaterally, and a decree which is absolutely null and void, which may be assailed anywhere.

Affirmed.

Case Details

Case Name: Theobald v. Deslonde

Court Name: Mississippi Supreme Court

Date Published: Mar 15, 1908

Citations: 46 So. 712; 93 Miss. 208

Court Abbreviation: Miss.