McIlvoy v. Alsop

45 Miss. 365

• Court: Mississippi Supreme Court
• Decided: October 15, 1871
• Status: Published

Opinion

Simball, J. :

This suit embraces two chancery causes, brought by Thomas B. Alsop, administrator de bonis non, cum testamento annexo, of Jesse Alsop, deceased, against the heirs and legal representatives of Kinchen Exum, deceased, and Edward Exum, deceased, and Daniel McIlvoy, which were consolidated and conducted to final decision as one cause.

The first bill proceeds for the foreclosure of a vendor’s lien on certain lands sold and conveyed by the testator, Jesse Alsop, to Kinchen Exum, for the price of $12,400, evidenced by promissory note, payable ten years after date, with eight per cent interest, payable annually.

The second bill claims, in addition to the vendor’s lien, a trust or charge created by Kinchen Exum, on the lands purchased from Alsop, and also upon other lands, by a deed executed by the said Kinchen to Edward Exum, among other trusts and uses, to secure the indebtedness of the said Kinchen to Jesse Alsop. Without further analysis of this conveyance, it may suffice to say that, while providing for this indebtedness, the grantor retains, for the use of himself and wife and children, an interest in the property, and creates a like use and benefit for Edward Exum, his wife and children, and, after the death of said Kinchen and Edward, devolves the whole beneficial interest upon their respective widows and children. The widows and children of these parties, having the beneficial intersts in the lands, are necessary parties defendant. The bills allege that Edward Exum left no estate, and, therefore, no legal representative was ever appointed by the probate court. They further charge that Jesse Alsop, at the time of his death, was domiciled in the state of Kentucky, where he died ; that he made a last will and testament, which has been probated in Kentucky, and in Yazoo county in this state, by which, among other things, he made certain persons, his slaves, his legatees, but these persons were emancipated by the said Jesse in fraud of the laws of this state, and the bequests to them were void for want of capacity in them to take and hold property. (At the last term we decided a case involving the rights of these legatees, under this will, to which we make reference.)

* The bills also allege that Daniel McIlvoy is in Kentucky, the administrator de bonis non, with the will annexed of the testator, he succeeding one Redding, the executor who has deceased.

They further allege that said McIlvoy has possession of the note of $17,000, due the estate of'Jesse Alsop, and which includes the $12,400, the price of the land sold to Kinchen Exum, the residue of the amount being for slaves bought by him from the testator, which note he refuses to deliver to the complainant, the legal representative of Jesse Alsop, deceased, in this state. They further allege that McIlvoy claims some sort of interest .in the estate of Jesse Alsop, by purchase from the legatees^ which was made for a very trifling consideration, from motives of speculation.

The decree was for a sale of lands to pay the indebtedness of the estate of Kinchen Exum, reported by the commissioner as amounting to thirty-four thousand and odd dollars. From which decree the case is brought to this court. On notification, the co-defendants of McIlvoy came in and united in the appeal.

It is assigned for erior that there has not been legal service of process on the minors, the. children of Kinchen and Edward Exum.

The fault is said to be that the sheriff did not serve the writ by copy on the “mother,” or “guardian,” as required by art 64, Code. The averment of the bills is, that there was no guardian, and the only surviving parents were the mothers. Both, the mothers were defendants, and were included in the summons with the minors. The return is, that the writ was executed on the persons named and copy given to each; a copy was given then to the “mother” and to each of the minors. It would have been an idle ceremony, to have given the mother “two copies.” The purpose of the statute has been met. The guardian ad litem put in for the minors the usual formal answer.

Ttíb settled doctrine of the equity courts is, that such answer (inasmuch as there can be no pro confesso against an infant) formally and technically brings to the notice of the court the interests of the infants in the litigation, and submits them to its protection. As they cannot confess or bind themselves by a waiver of right, a decree cannot be made against them except upon proof of the material statements of the bill. Ingersoll v. Ingersoll, 42 Miss.; Winston & Co. v. McLendon, 43 ib. 257.

Submitting their rights to this test, and it is manifest that the decree is erroneous. The bill alleges that payment for land sold by the testator to Kinchen Exum was postponed for ten years, the purchaser giving his note therefor. The deed which was made an exhibit with the bill recites that the money was paid down; as against the infants, it was necessary to overcome this recital by proof. This deed was all the evidence of the sale of the land and its price, and was prima facie evidence that there was no debt due for it, and of course no lien.

The admissions made in the answer of the administrators of-Kinchen Exum, that the averments of the bill on this point are true, do not conclude these infants.

But the bill states that Kinchen Exum made his note to Jesse Alsop for $17,000, embracing the price of the land and slaves bought at the same time. This note was not produced on the trial. There is no paper in the cause, signed by Kinchen Exum, acknowledging the existence of such a note, or any specific amount of indebtedness. The deed executed by him to Edward Exum does not specify the amount of his indebtedness to Jesse Alsop. It makes provision for the payment of' “his indebtedness,” etc., As against the infants, it was necessary to make proof of the amount of the indebtedness.

There can be no doubt that whatever debt (growing out of the transactions set out in the bill) may be owing from the estate of Kinchen Exum to the estate of Jesse Alsop, it constitutes a part of the assets of the latter estate in Mississippi, and rightfully belongs to the legal representative here. The debtor resided here, the property sought to be subjected to its payment is here. McIlvoy, by virtue of his appointment as administrator in Kentucky, has no character or office as such in this state; he can not sue in our courts. When Robert B. Alsop was appointed administrator, etc., the law charged him with administration of all the assets in Mississippi. This being a debt due here, it was his duty to take measures for its collection. The fact that the “evidence” of the debt was in the hands of the Kentucky administrator, did not destroy its character as Mississippi assets, nor defeat his right of recovery. It might embarrass his remedy. As to Mcllvoy, the pro eonfesso against him admits the allegations of the bill on this point, that Redding, the executor, inventoried the note here, and took it with him to Kentucky, and from him, as part of the papers of the estate, it came to the possession of his successor. After the note became due, it was still in Mcllvoy’s possession. The protection in favor of a bona fide holder for value would not inure to his assignee. No better title would pass than Mcllvoy had. No right would be transferred as against the superior title of the administrator here. If Mcllvoy, in dereliction of his plain duty, should persist in retaining the note, we are satisfied that the administrator here may collect the debt, the chancery court taking due precautions, for the benefit of those responsible for its payment, against the risk and danger of trouble and costs in making a defense against an assignee.

Decree reversed, and cause remanded for further proceedings in accordance with this opinion.

Berry, adm’r, v. Alsop, adm’r, supra, 1.