Summary
In Whitley v. Towle, 163 Miss. 418, 141 So. 571, the return of the service was missing, and the appellant there contended that the record failed to show that the summons to the appellee to appear before the chancellor at the time and place mentioned was served.
Summary of this case from Rowell v. LoganOpinion
No. 29921.
May 9, 1932.
1. EXECUTORS AND ADMINISTRATORS. Petition for sale of decedent's lands in W. county to pay debts may be heard by chancellor in S. county within same chancery district ( Code 1930, sections 322, 1691, 1694, 1695).
Administrator of estate filed petition for sale of lands of decedent to pay debts of the estate in Washington county, where the estate was being administered and where the lands were situated. Summons directed parties to appear before the chancellor in vacation in named city in Sunflower county, but in the same chancery district.
2. EXECUTORS AND ADMINISTRATORS.
General practice is to make petitions in estate matters returnable before chancellor at place of residence, if court is not scheduled elsewhere.
3. EXECUTORS AND ADMINISTRATORS.
Where petition in estate matter is desired to be heard when chancellor is scheduled in some other county within same chancery district, usual course is to have chancellor set place and date.
4. EXECUTORS AND ADMINISTRATORS.
Where chancellor is present at time and place in district specified in summons, and proceeds to hearing, chancellor's action is equivalent to previous designation of time and place specified in summons.
5. JUDGMENT.
In collateral attack on decree, jurisdictional facts are conclusively presumed to have existed, unless record affirmatively shows contrary.
6. JUDGMENT.
Fact that return of service of process is missing from record held insufficient to warrant setting aside decree on collateral attack.
7. EXECUTORS AND ADMINISTRATORS.
Widow, through failure to appear and assert homestead rights in answer to petition to sell deceased husband's lands, waived homestead claim.
APPEAL from the circuit court of Washington county. HON. S.F. DAVIS, Judge.
Wynn Hafter, of Greenville, for appellant.
It has been held with unvarying uniformity as well as unanimity, that a decree by the probate court, and sale of the land of a decedent without the citation and notice required by the statute, appearing either by positive evidence or recital in the record, is void. Not only as against its express provisions, but because it stands opposed to the universal principle of law and common justice, that no man can be deprived of his rights or concluded in any manner by the judgment of a court, without notice of the proceedings against him, either actual or constructive.
Root v. McFerrin, 37 Miss. 17.
It is a familiar principle, that a judgment is conclusive upon parties and privies, when the court has jurisdiction to render it. Unless such jurisdiction exists, the judgment is a nullity, and may be impeached collaterally. The jurisdiction must extend to the parties, as well as the subject-matter.
Root v. McFerrin. 37 Miss. 17.
If the appellant had been properly and legally served with summons, and had been duly and legally made a party to the proceeding to dispose of the land, even under this circumstance, she would not be estopped from asserting her homestead right in the property. The right of homestead was a right that is set apart to the widow by statute, as a matter of law; and, if the estate had any interest in the real estate formerly owned by J.H. Whitley in his lifetime, it was the fee simple title to said property for an amount over and above the homestead claim of the appellant. The petition, as filed, did not include a prayer to sell the property in its entirety, including the homestead right, but only asks that the interest of the estate in said real estate be sold.
The decree does not decide that five days' personal service had been had.
Sections 2969, 3052, Code of 1930.
The summons is ineffectual because the clerk of the court of Washington county, Mississippi, did not have the power and authority to issue a summons requiring the defendant to appear before the court held in Sunflower county, Mississippi, and that the decree rendered thereon was a nullity.
The venue is fixed in Washington county, Mississippi, and not in Sunflower county, Mississippi, of a petition to sell property located at Washington county, Mississippi, and owned by an estate being administered in Washington county, Mississippi and the appellant being a citizen and resident of Washington county, Mississippi.
Section 363, Code of 1930.
No matter whether the court be one of original and general, or of special and limited jurisdiction, it must appear, in either case, on the face of the record, that it had jurisdiction by the Constitution or laws of the land, both of the parties and the subject-matter, before it can deprive the citizen of his rights or property by its judgments.
Root v. McFerrin, 37 Miss. 17.
E.J. Bogen, of Greenville, for appellee.
The summons was a substantial compliance with the statutes.
Sections 2964 and 2965, Code of 1930.
The order of the chancellor for the sale of the land in question, setting out that the necessary service upon all parties had been had, is a sufficient recital in the record for a valid sale.
The appellant lost her right to claim homestead exemption by not asserting it in the chancery suit.
Miller v. Sherry, 2 Wall. 237; Henderson v. Still, 61 Miss. 391.
Where decree of court necessarily passes on a claim of homestead exemption, the decree cannot be questioned collaterally.
New Mexico Nat. Bank v. Brooks, 49 P. 949; Plant v. Carpenter, 19 Wn. 626, 53 P. 1109; Graham v. Culver, 3 Wyo. 655, 31 Am. St. Rep. 120, 29 P. 276.
The exemption of wages is a benefit of which the debtor may, if he please avail himself; but he can if he desires, voluntarily waive his legal right, and will do so, by operation of law, by failure to contest the garnishment.
Sturges v. Jackson, 88 Miss. 508, 6 L.R.A. (N.S.) 491.
A homestead claim must be set up before sale of the property and such claim is waived if no exemption is claimed.
Stanley v. Ehrman, 83 Ala. 215, 3 So. 527; Lackland v. Rogers, 113 Ala. 529, 23 So. 489; Rodgers v. Lackland, 117 Ala. 599, 23 So. 489; Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 93 So. 904; Cunningham v. Steidman, 133 La. 44, 62 So. 346.
A debtor may waive his statutory privilege of homestead exemption from execution.
13 R.C.L. 656; Bowman v. Smiley, 31 Pa. St. 255, 72 Am. Dec. 738.
Prior to an election and selection by the owner, however, a homestead may be waived by failure to make such election and selection before sale by the sheriff.
13 R.C.L. 656; Riggs v. Sterling, 27 N.W. 705.
While there is some authority denying the right of a debtor to waive an exemption created in favor of the head of a family, the weight of authority favors the rule that an exemption is a mere privilege which a debtor may waive.
11 R.C.L., sec. 55, p. 539; Brown v. Letich, 60 Ala. 313, 31 Am. Rep. 42; Dowling Allgood v. Wood, 125 Ia. 244, 101 N.W. 113; Sturges v. Jackson, 88 Miss. 508, 40 So. 547; Bowman v. Smiley, 31 Pa. St. 225, 72 Am. Dec. 738.
Where a claim of homestead exemption has been adjudicated adversely to the defendant in an action to foreclose a mortgage upon the premises, it cannot be again interposed as a defense to an action for the possession brought by the purchaser under the foreclosure judgment. This adjudication until reversed or annulled by some direct proceeding for that purpose, is, wherever brought collaterally in question, conclusive of the matters therein adjudicated.
13 R.C.L., sec. 154, p. 695; Larson v. Reynolds, 13 Ia. 579, 81 Am. Dec. 444; Lee v. Kingsburg, 13 Tex. 68, 62 Am. Dec. 546; Tadlock v. Eccles, 20 Tex. 782, 73 Am. Dec. 213.
Where there was a sale of property by an administrator the report being in all things confirmed, any irregularity in the sale on account of the place where it was made was cured by the action of the court in adopting the selection which the administrators had made, and which thereby became as effectual to pass title as if selected by the court in the first instance and a decree confirming the sale, adjudging that it was made in confirmity with the decree, together with a recital in the deed to the purchaser that the purchase money had been paid and a charge therewith against the administrator in his accourts, sufficiently prove the payment, is a collateral attack on the sale predicated on its alleged nonpayment.
Ladd v. Craig, 94 Miss. 659.
In the absence of fraud the judgment or decree of a court of competent jurisdiction cannot be collaterally impeached, as by seeking to wrest from a purchaser the fruits of such judgment, but the decree or judgment must be directly attacked as if by appeal, bill of review, or other proceeding, which has for its special object the annulment of the judgment itself rather than a deprivation of its fruits.
Temples v. Cain, 60 Miss. 478.
The final order of confirmation, having the effect of a final conclusive judgment, cures all irregularities, misconduct and unfairness in the making of the sale, departures from the provisions of the decree of sale, and errors in the decree and the proceedings under it; and if the court had jurisdiction and the officer the authority to sell, it makes the sale valid as against collateral attack even though irregular and voidable before and though grounds sufficient to have prevented confirmation existed.
11 R.C.L., sec. 62, p. 84.
A decree of sale which divests the defendant of his homestead right in the premises cannot be collaterally questioned, and is conclusive upon the parties until reversed.
16 R.C.L., sec. 24, pp. 33 and 34.
Appellee brought an action of ejectment against appellant to oust appellant from certain lands in the county of Washington which had theretofore been the property of appellant's deceased husband. During the course of the administration of the estate of appellant's said husband, the administrator filed a petition under sections 1691, 1694, and 1695, Code 1930, for the sale of the land of the decedent to pay the debts of the estate; the personal property not being sufficient. This petition was filed in Washington county, where the estate was being administered and where the land was situated. The parties in interest were summoned by the clerk of that county to appear before the chancellor in vacation at the courthouse in the city of Indianola, which is in Sunflower county, but in the same chancery district. The summons was issued on the 22d day of October, 1930, and the parties were thereby notified to appear before the chancellor at the place aforesaid on the 22d day of November, 1930. The chancellor ordered the sale; appellee became the purchaser; the sale was confirmed, the commissioner duly executed his deed to appellee, and the title thereby obtained is the title upon which appellee prevailed in his ejectment suit.
Appellant contends first that the chancellor was without power, at any other place in his district than in the county of Washington, to act on this petition and to decree a sale of the land. In this appellant is in error. Under section 322, Code 1930, the chancellor is empowered to act on matters of this character at any place in his district. This has been the recognized rule of law and procedure in such matters from time out of mind — as far back as any of us now living can remember. If the rule were otherwise, the number of chancellors in the state would have to be increased to twenty or more, and the salary paid them would be largely absorbed in traveling expenses. Moreover, it will be observed that section 1694, Code 1930, dealing with this very subject, provides that the summons "shall specify the time and place of hearing the petition." If the petition could be heard only in the county of the administration, then it would follow, upon equal reason, that the courthouse of that county would be the only permissible place of the hearing. The provision in the statute in respect to the specification of the place of the hearing has reference to the rule that the hearing may be had at any place in the district, and the requirement is that the summons shall designate the place within the district, as well as the time, so that the parties may be thus advised where and when to attend and be heard.
But appellant contends in the second place, that if the hearing may be had outside of the county of the administration, the time and place must be first designated or fixed by the chancellor by an order and that a summons issued by the clerk without a previous order by the chancellor is invalid; and appellant points out that no such precedent order was made by the chancellor in this case. There is no authority for appellant's position and the practice of many years' standing is to the contrary. The usual practice is to make these petitions in estate matters returnable before the chancellor at his office at his place of residence if at a time when he is not scheduled to be holding court elsewhere, and this without any previous communication with, or authority from, the chancellor. If the matter is desired to be heard by the chancellor at a time when his calendar discloses that he will be holding court in some other county in his district, the usual course is to communicate with him and have him set a place and a date, which he does in ordinary course by an oral communication to the solicitors or to the clerk. However, regardless of the manner in which the time and place of hearing is designated, if the chancellor be present at the time, and at the place in his district, specified in the summons and then and there proceed to the hearing, his action is the equivalent in every way of a previous designation by him of the time and place as specified in the summons.
Appellant contends in the third place that the record herein fails to show that the summons to appellee, to appear before the chancellor at the time and place hereinabove mentioned, was served on appellee — the return of the service is missing from the record. In a direct attack on a decree it is, of course, competent to show that there was no service of summons, but in a collateral attack, as is here made, unless the record affirmatively shows to the contrary, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process. It is not enough that the return of service is merely missing from the record — and that is all that is shown here. This exact point was settled in Federal Reserve Bank v. Wall, 138 Miss. 204, 103 So. 5.
Appellant next contends that she is entitled to have a homestead set apart to her out of the lands ordered sold by the chancery court, and that the land from which she is being ejected by appellee is in fact her homestead. The principle governing this issue is that appellant lost her right to claim the homestead exemption by her failure to appear and assert it in answer to the aforementioned petition to sell the lands to pay debts. Henderson v. Still, 61 Miss. 391. The ancient principle of procedure is applied that he who fails to object when he could and should, will not be heard later to object when he would.
The other points made by appellant are foreclosed by the facts upon the record and do not, as we view them, require comment.
Affirmed.