Adams v. Belt

100 So. 191, 136 Miss. 511, 1924 Miss. LEXIS 100

• Court: Mississippi Supreme Court
• Decided: February 4, 1924
• Docket: No. 23715
• Status: Published

Opinion

Smith:, C. J.,

delivered the opinion, of the court.

The case made by the record is this: In February, 1916, L. Carlton Belt, a citizen and resident of Bullock county, Ga,, died seized mid. possessed of certain land in Tallahatchie county, Miss., leaving as his heirs at law his widow, Elizabeth T. Belt, and three children, Willie B. Belt, Lloyd J. Belt, and Talbot C. Belt, minors. The land was purchased by Belt from W. A. Jenkins, and there remained a balance due by Belt to Jenkins for the purchase money thereof at Belt’s death. In September, 1869, Jenkins being then dead, his administratrix, Margaret Jenkins, exhibited a bill in the court below to which the widow and children of Belt were made parties defendant, setting; forth, the amount due by Belt on the purchase price of the land. Belt left a last will and testament in which his wife, Elizabeth T. Belt, is designated as executrix, but which had not been probated in Mississippi, and praying for a sale of the land for the payment of the balance due on the purchase money thereof. This bill alleged that the defendants therein were ‘ ‘ citizens of the state of Georgia, residing at Augusta, said state. ’ ’

On this bill a decree pro confesso apparently against all the defendants was taken, reciting that:

“It appearing to the court that the defendants in the above suit are non-residents and that they have been cited to appear at the present term of this court, by publication, made according to law, and the order of publication sent by mail to their place of residence in the state of Georgia, as required by law, ’ ’ etc.

On final hearing this decree was dealt with as if it were against Mrs. Belt alone.

A motion was made for the appointment of D. M. White, clerk of the court, as guardian ad litem of Willie B., Lloyd J., and Talbot C. Belt, who were then minors, and while the record discloses no appointment of the clerk as such guardian he filed an answer and thereafter acted in the cause as such guardian. In December, 1870', the cause was heard on the bill, decree pro confesso as to Mrs. ¡Elizabeth T. Belt, the answer of the guardian ad litem of the minor defendants, exhibits, and the report of the master to whom the matter had been referred for the statement of the account sued on, and a decree wa,s rendered adjudging the amount due thereon to be four thousand two hundred seventy-five dollars and sixty cents and appointing the clerk of the court as a commissioner to sell the land unless the balance decreed to be due thereon should be paid within, thirty days, and. to apply the proceeds to the payment of the debt sued on and the costs of suit, and the remainder, if any, to Elizabeth T. Belt. A report of the sale under this decree was made in the name of “D1. M. White, Clerk and Master, by G. A. Nicholetts, D. C. & M.,” setting forth the sale of the land to Elizabeth T. Belt for the sum of two hundred and twenty-five dollars, on which a decree was rendered confirming the sale reciting:

“And it further appearing* to the satisfaction of this court that D. M. White, former clerk of this court and the commissioner by whom said report of sale has heretofore been deposited in this court has been removed from the clerkship of this court, it is therefore ordered, adjudged and decreed that G.- A. Nicholetts, the clerk of this court be appointed the commissioner of this court to convey Irp deed said lands to said purchaser, Elizabeth T. Belt.”

Nicholetts executed a deed to Mrs. Belt pursuant to this decree, and the land was thereafter sold under a mortgage executed by Mrs. Belt to Eve and purchased by Eve. In 1901, 1903 and 1904 Joseph C. Adams, the appellant in the case at bar, became the owner of the land by direct and mesne conveyances from Eve. He purchased the land after being* advised by a competent and reputable attorney, who made an abstract of the title thereof for him, that the title thereto was good, and without any notice of any defect in the proceeding by which the Jenkins’ vendor’s lien was foreclosed or of any claim of the appellees thereto. The appellant has been in actual possession of the land since he purchased it. residing on it most of the time.

In November, 1917, an original bill of complaint was exhibited by Lloyd J. Belt and C. T. Belt, residents and citizens of the state of Georgia against Adams, the appellant, alleging in substance what has hereinbefore been set forth, and in addition thereto charging: That L. Carlton Belt left a will by which he among other devises and bequests devised the land here in controvers}* to his window, Elizabeth T. Belt, who was also named as executrix in the will, for life, with remainder at her death to his ‘‘ then surviving children and the children, if- any, of such as maj7 have died before her,” which will was probated at Belt’s residence in Bullock county, Ga., but not in Mississippi. That no process was served on or publication made for the defendants in the proceeding1 by which the land was sold under the Jenkins’ vendor’s lien. That Mrs. Elizabeth T. Belt died on February 7, 1917. That Willie B. Belt died prior thereto leaving no child or children. That Talbot C. Belt died prior thereto leaving as his sole and only heir his son, C. 1. Belt. That the balance due Jenkins by L. Carlton Belt on the purchase money of the land was paid by Elizabeth T. Belt in F'ebruarj'', 3871, after a decree for the sale of the land had been rendered, but before the sale had been made. The prayer of the bill is that the decrees under which the land was sold be set aside and the deeds under which Adams claims title thereto be canceled, and that the appellees be decreed to be the owners of the land, and for an accounting by Adams for the rents and profits thereof.

A supplemental bill set forth, among other things, that since the filing of the original bill Lloyd J. Belt has died intestate leaving as his heir at law his widow, Susan W. Belt, and praying that she be made a party complainant in the cause.

A demurrer interposed to this bill was sustained but on appeal to this court the decree was reversed and the cause remanded, as will appear from 124 Miss. 194, 86 So. 584, and 125 Miss. 387, 87 So. 666, wherein the allegations of the bill are set forth more in detail than they have been herein. On the return of the case to the court below Adams answered the bill, and the cause was heard on bill, answer, and proof resulting in a decree in accordance with the prayer of the bill, from which Adams has appealed.

The will of L. Carlton Belt was not probated in Mississippi until after the death of Elizabeth Belt in Í917.

The grounds on which it is sought to reopen the orders and decrees in the case of Jenkins v. Belt are: (3) The recital in the pro confesso decree that the defendants “have been cited to appear at the present term of this court, by publication, made according to law, and the order of publication sent by mail to their place of residence in the state of Georgia, as required by law,” is false and that no legal publication for the defendants was in fact made; (2) that the balance due Jenkins by Belt on the, purchase of the land was paid by Belt’s administratrix after the rendition of the decree for the sale of the land and before the sale thereunder was made; (3) that the same person, D. M. White, clerk of the court, was appointed both as guardian ad litem of the minor defendants and as commissioner to sell the land; (4) the sale of the land was in fact made not by White, who was appointed as commissioner for that purpose, but by his deputy clerk, Nicholetts; (5) the price brought by the land at the sale was wholly inadequate; (6) that Mrs. Belt was disqualified to purchase the land because she was the executrix of the estate of L. Carlton Belt of which estate the land was a part.

In support'of the allegation of the bill that publication was not made'for the defendants in the case of Jenkins v. Belt, the minutes of the court below covering the period during which the cause was pending, most of which were made exhibits to the bill, were introduced in evidence, and there appears therein in addition to the orders and decrees hereinbefore referred to an order in the clerk’s vacation minutes reajing as follows:

“Order taken at rules, third Monday of October, 1870, Margaret Jenkins, Administratrix, v. Elizabeth T. Belt.

“On opening the bill in this cause it appearing that the defendants are nonresidents of this state and are citizens of the state of Georgia, and of the city of Augusta, it is therefore ordered that notice be published in the Tallahatchie News, a weekly paper published in the town of Charleston, in Tallahatchie county, for four consecutive weeks, to appear at the next November term of the chancery court for said county to plead, answer or demur to the said bill of complaint, or sáme will be taken for confessed, and it is further ordered, that a copy of this order be sent by mail, according; to law, to said defendants, directed to them at said city of Augusta, in said state of Georgia. ’ ’

. This order was not signed by the clerk, was not confirmed by' the court in term time, is in the handwriting of the complainant’s solicitor in the case of Jenkins v. Belt, and the order preceding it, and the one immediately following; are both dated during- the month of September. All of the other vacation orders of that period appear in the handwriting of the clerk or signed by him, and seem to have been acted on by the court in term time. The vacation minutes of the clerk contain several blank spaces and one entire blank pag;e. This order does not appear in the final record made by the clerk of the proceeding in the case. It was not made an exhibit to the bill, and consequently was not before the court on the former appeal herein. There is no copy of the publication for the defendants in.the case of Jenkins v. Belt in the file thereof, but there is therein a proof of publication by the printers and a receipt for their fees therefor.

On December 7,1870, the clerk of the court below made and filed the folloAving affidavit:

“Margaret Jenkins, Adm’x, v. Elizabeth T. Belt et al.

"This day personally appeared in open court D. M. White, clerk of this court, who makes oath as required by the rule of this court that he forwarded by mail as required by law to the defendants in the above cause at their stated residence, Augusta, Georgia, the order of publication taken at rules at the above cause.

"[Signed] D. M. White.

"Sworn to and subscribed before me this the 7th day of December, 1870'.

"[Signed] J. F. Simmons,"

The statute in force when this case was pending is as follows:

"When it shall be made to appear to the satisfaction of the judge, by affidavit or otherwise, that any defendant to a suit in chancery, is out of the state, or a nonresident thereof, or cannot, upon due inquiry, be found therein, an order may be made directing such defendant to appear, and plead, answer or demur, to the complainant’s bill, at a certain day therein to be named, being a return day of the court, not less than two nor more than six months after the date of the order, which order shall, within twenty days thereafter, be personally served on such defendant by delivery of a copy thereof to him, or be published in one of the public newspapers of this state, designated in such order, for four weeks successively, at least once in each week; and such order shall also be served, or published, in such other manner as may be therein directed. Such orders of publication may also be entered at rules to be held in the clerk’s, office, subject to the control of the court,” etc. Rev. Code 1857, chapter 62, art. 34.

An amendment to this statute provides:

“That it shall not be necessary to take orders of publication for absent or nonresident defendants, before the clerks at rules, but the same maj'- be taken at any time in the office, before the clerk, whether the same be at rules or not; and the order, when so taken, shall be entered on the minutes by the clerk, subject to the control of the court;” etc. (Laws 1867, chapter 284.)

On this evidence the contention of the appellant is that no publication was in fact made, and, if made, was not made pursuant to a valid order therefor, the order purporting to have been made by the clerk therefor having been in fact entered on the minutes without authority so to do.

Assuming, as was held on the former1 appeal, that this is a direct and not a collateral attack on the decree in the 'case of Jenkins v. Belt, the recital in the order herein-before set out that publication for the defendants in that case had been in fact made is not conclusive, but the burden of showing- its falsity is on the appellees, the complainants in the court below, and it must be accepted as true unless the evidence to the contrary is clear1 and convincing. The absence of the clerk’s signature to the order for publication is not material as his signature thereto was not required by the statute, and, while the facts hereinbefore set forth may be sufficient to arrest attention and cast doubt upon the validity of the order, they are wholly insufficient to overflow it after the lapse of half a century and in the face of the solemn adjudication of the court that the defendants “have been cited to appear at the present term of this court by publication made according to law-and the order of publication sent by mail to their residence.” That recital not being proven to be false must be accepted as true, from which it follows that the court acquired jurisdiction of the defendants, and consequently the decrees rendered pursuant thereto must remain in force unless they can be set aside on some other ground.

Our holding that publication was made for the defendants in the case of Jenkins v. Belt disposes of the objection here raised to the validity of the decree therein rendered for the sale of the land, so that we come now to the objections raised to the validity of the subsequent orders and decrees therein made.

On the^ former appeal herein it was held that the other alleged defects in the orders and decrees in the case of Jenkins v. Belt are not such as would render them void, but voidable only (125 Miss, at page 390, 87 So. 666), so that at the threshold of the appellees’ case lie these orders and decrees which must be set aside before any question can arise as to whether or not the appellees are otherwise barred from recovering the land. The first question that presents itself in this connection is: Are the appellees barred by the lapse of time from obtaining a suit to annul these orders and decrees'? In determining this question the fact that the appellees’ right under the will of L. Carlton Belt to the possession of the land may not have accrued until the death of Mrs. Elizabeth T. Belt in 1917 is of no consequence, for their right to annul these orders and decrees is in no wise dependent on their right to the possession of the land, or rather upon the time when that right may have accrued. What was said in this connection'on -the former appeal was there material, for it then appeared from, the allegations of the bill that publication for the defendants in Jenkins v. Belt had not been made, which, if true, would have resulted in all of the orders and decrees therein rendered being void. It is true that the relief here sought is both the annulment of the orders and decrees under which the land was sold and the recovery of the possession of the land. But the joinder of the two in one suit cannot affect the time within which a suit to annul the orders and decrees must be brought. Brooks v. Spann, 63 Miss. 198.

In deciding the question now under consideration we will leave out of view section 1265, Code of 1871, which now appears as section 646, Code of 1906 (section 408, Hemingway’s Code), and also the effect, if any, of the failure of the minor defendants to appeal the case of Jenkins v. Belt to this court within the time allowed them therefor after attaining their majority by section 2161, _ Code of 1871, which now appears' as chapter 222, Laws of 1916 (Hemingway’s Code, section 2476). If either of these statutes appH here, the appellees cannot of course maintain this suit.

While we have no statute specifically prescribing the time within which a suit to annul a decree must be brought, the court by analogy will limit the time'therefor to the time prescribed by the statutes for bills of review, appeals to this court, and similar proceedings. The longest period of time within which proceedings to reopen a decree can be begqn is that provided for a bill of review and is the period that must control here. Brooks v. Spann, 63 Miss. 198; Metcalfe v. Perry, 66 Miss. 68, 5 So. 232. That period under the present statute (sect'ijon 3111, Code of 1906; Hemingway’s Code, section 2475) is two years from the rendition of the decree saving- to minors a like period after attaining- their majority.

Conceding for the sake of the argument that concealed fraud is here charged, the rule thereby sought to be invoked, that the limitation on the right to bring a suit to annul a decree commences only when the fraud on which the suit is predicated is or ought to have been discovered, cannot apply here, for defendants in the cause in which the orders and decrees here sought to be annulled were rendered were dead when the cause in which the decree here appealed from was rendered was tried in the court below, and it does not appear from the evidence that they did not know of the matters on which the charge of fraud is predicated. Moreover the rule of concealed fraud cannot appl}" to those things that were here openly done or which appear of record. Thornton v. City of Natchez, 88 Miss. 1, 41 So. 498: Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 L. Ed. 424.

This disposes of all of the grounds on which the orders and decrees rendered in Jenkins v. Belt, are sought to be annulled except that when Mrs. Belt purchased the land at the sale she was the executrix of the will of her husband, L. Carlton Belt, by which the land was divested as hereinbefore set out. What has just been said applies to any right the minors may have had to have the decree confirming'; the sale of the land set aside because the purchaser thereof was the executrix of the estate of which the land formed a part, and the only other right they could have had because of the purchase of the land by the executrix was to institute proceedings within ten years after attaining’ their majority to have her decreed to hold the land in trust for them. Belt v. Adams, 125 Miss. 390, 87 So. 666; section 3125, Code of 1906 (Hemingway’s Code, section 2489).

In any aspect of the case the appellants could not now maintain a suit to annul the orders and decrees under which the land was sold, even if it had remained in the hands of the purchaser at the sale. Consequently we have left out of view the fact that the appellant is a subsequent purchaser for value. .

Reversed and bill dismissed.