Summary
In Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So.2d 852, 853, it was pointed out that: "A bill of complaint in a proceeding requiring deraignment of title does not state a case against defendants thereto unless the deraignment be sufficient, since complainant must depend upon the strength of his own title and not the weakness of that of his adversary."
Summary of this case from Smith v. OverstreetOpinion
No. 36047.
February 25, 1946.
1. QUIETING TITLE.
A decree confirming title to controverted lands was not justified where there was no compliance with statute requiring unknown persons having an interest in the lands to be made defendants by notice (Code 1942, sec. 1314).
2. QUIETING TITLE.
In construction of will allegedly naming no devisees, if sought in suit to confirm title to land, all beneficiaries of will should have been under valid process (Code 1942, secs. 473, 506).
3. QUIETING TITLE.
In suit to confirm title to controverted lands, bill stating that the lands were derived from a common source who owned the lands was not sufficient in a deraignment of title and was demurrable for failure to show facts of the title of the common source (Code 1942, sec. 1325).
4. QUIETING TITLE.
A bill of complaint in a proceeding requiring deraignment of title does not state a case against defendants thereto unless the deraignment is sufficient, since the complainant must depend upon the strength of his own title and not upon the weakness of his adversary (Code 1942, sec. 1325).
5. EQUITY.
A court of equity will not proceed to a final decree as to any defendant until the cause is triable as to all the defendants.
6. APPEAL AND ERROR.
A final decree which was entered against a named defendant when other defendants were never in court by any known valid form of process, and which was wholly ineffectual and validly accomplished no purpose sought by the complaint against the other parties, would be reversed and remanded pursuant to the appeal of certain of the defendants (Code 1942, sec. 1156).
APPEAL from the chancery court of Franklin county, HON. R.W. CURTER, Chancellor.
J.W. Kellum, of Tutwiler, for appellants.
Notwithstanding the fact that the decree pro confesso and decree final were taken in the court below by reason of the default of appellants in failing to file any answer to the bill of complaint, this decree should not be sustained, because the bill of complaint stated no cause of action. To confirm title to lands, a bill of complaint must come within the purview of Sections 1314, 1323, and 1325, Code of 1942; and it is evident, and manifestly clear, that this bill is not sanctioned by those sections, because under Section 1314, supra, the complaint is required to set out in his bill the names and places of residence of all persons interested in the land, so far as known to the complainant, or as he can ascertain by diligent inquiry. This requirement was not followed in the case at bar, and since this proceeding is statutory, the statute must be strictly complied with.
Hatchett v. Thompson, 174 Miss. 502, 165 So. 110; Carr v. Barton, 173 Miss. 662, 162 So. 172; Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32; Smith v. Denny Co., 90 Miss. 434, 43 So. 479; Paepcke-Leicht Lumber Co. v. Savage, 137 Miss. 11, 101 So. 709; Trager v. Jenkins, 75 Miss. 676, 23 So. 424; Griffith's Chancery Practice, Secs. 113, 114.
The bill also fails to affirmatively allege that complainant was in possession of the lands, or that there was no adverse occupancy thereof on the part of the other defendants, other than Joe Dorsey; it might be said that the bill infers the above facts, in regard to possession and non-occupancy, however, that is not sufficient, under Section 1323, supra, for these facts must be directly alleged.
Gambrell Lumber Co. v. Saratoga Lumber Co., 87 Miss. 773, 40 So. 485; Hume v. Inglis, 154 Miss. 481, 122 So. 535; Brooks-Scanlon Co. v. Stogner, 114 Miss. 736, 75 So. 596; Trager v. Jenkins, supra; Easterling et al. v. Howie, 179 Miss. 680, 176 So. 585; Broome v. Jackson, 193 Miss. 66, 7 So.2d 829; Griffith's Chancery Practice, Secs. 113, 217.
This bill of complaint cannot be sustained as a suit to remove a cloud under Section 1324, Code of 1942. The complainant must comply with Section 1325, Code of 1942, and deraign his title in suits to remove clouds, as well as in confirmation suits; and he must do this by showing title in himself from the government down, or title in himself by adverse possession, or title in himself from the defendants, or that the parties claim under a common source, the complainant having the better title from that source.
Russell v. Hickory, 116 Miss. 46, 76 So. 825; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Longmire v. Mars, 124 Miss. 77, 86 So. 753; Long v. Stanley, 79 Miss. 298, 30 So. 823; Jones v. Rogers, 85 Miss. 802, 38 So. 742; Carlisle v. Tindall, 49 Miss. 229; Griffith's Chancery Practice, Sec. 211.
In regard to the will, which is claimed as a cloud, the record shows that all parties thereto were not before the court; the heirs of Carrie Fells and of Clabe Dorsey were not summoned. This should have been done.
Griffith's Chancery Practice, Sec. 115.
The bill further alleges that complainant had learned that certain persons, including Wiley Dorsey, one of the appellants, were claiming an interest in the lands and recites: "Your complainant denies that the above named parties have any interest in said property, but he is informed that they are asserting some claim." Facts must be charged as facts in a traversable form. Opinions, beliefs, legal conclusions, matters argumentative, or merely inferential or conjectural, — none of these are proper, for they are neither material not issuable. By this pro confesso decree, the appellants admitted only the information, not the facts.
Griffith's Chancery Practice, Sec. 175.
The will involved herein recites: ". . . I give and bequeath my whole estate both personal and real as follows, to-wit: One Dollar $1.00 each Celia Dorsey, Cinda Bell and Carrie Fells, Francis Brooce, Camie Dorsey, Will Dorsey and Clabe Dorsey and Wiley Dorsey. And all the balance of my estate both personal and real to-wit . . ." Certain real estate is then described, including all property involved in the case at bar. The word "and" is a conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first; it is said to be equivalent to "as well as" (see Black's Law Dictionary 3rd Ed.). There is a presumption of law, and this presumption existed at the time this will was executed, that the testatrix did not intend to die intestate as to any of her property. (69 C.J. 91; Vaiden v. Hawkins, 59 Miss. 406; Hale v. Neilson, 112 Miss. 291, 72 So. 1011). In the Hale case, supra, Justice Stevens quotes the following from Underhill on Wills, to-wit: "The presumption arises that, having the disposition of his whole estate in view, he did not intend to die intestate as to any part of it. If his subsequent language may be construed in either of two ways, by one of which a complete disposition will be made of his whole estate, and by the other only a partial intestacy, the introductory statement, pointing to a complete disposition, ought to be considered, and that sense adopted which will result in a disposition of the whole estate." The bill of complaint alleges no facts to overcome this presumption, but merely alleges that the will is null and void, insofar as it related to the reality, because no grantee was mentioned therein. It would be necessary, under Section 1324, supra, that this bill show, in addition to a perfect title in complaint, the invalidity of this will.
Phelps v. Harris, 51 Miss. 789; Plummer v. Plummer, 37 Miss. 185; Handy v. Noonan, 51 Miss. 166; Griffin v. Harrison, 52 Miss. 824; Gambrell Lumber Co. v. Saratoga Lumber Co., supra; Longmire v. Mars, 124 Miss. 77, 86 So. 753; Griffith's Chancery Practice, Sec. 212.
The bill of complaint filed in this cause affirmatively shows that appellants were, and are, co-tenants of Joe Dorsey. A tenant cannot acquire title against his cotenant by adverse possession, until he has actually ousted his co-tenant, or done some act deemed by law equivalent thereto. If Joe Dorsey had done this, prior to the filing of the bill of complaint in this case, said bill fails to so state. In view of the aforesaid, appellants contend that Joe Dorsey was not the "real owner."
James v. Rowan, 6 Smedes M. (14 Miss.) 393; Bentley v. Callaghan, 79 Miss. 302, 30 So. 709; Wise v. Hyatt, 68 Miss. 714, 10 So. 37; Gilchrist Fordney Co. v. Ezelle, 141 Miss. 124, 106 So. 269; Jones v. Flanniken, 69 Miss. 577, 11 So. 319.
It may be observed, in considering this bill as a whole and the action of the lower court, even though the bill affirmatively shows that Joe Dorsey had contracted to convey the timber, complainant, nevertheless, asks the court to, and the court did by its decree, declare Joe Dorsey the fee simple owner. This the court did not have the authority to do.
Iselin v. La Coste, 139 F.2d 887, certiorari denied 64 S.Ct. 791, 321 U.S. 790, 88 L.Ed. 1080.
The record shows that the learned chancellor granted an order on February 20, 1945, allowing Wiley Dorsey, et al., sixty days in which to file their answer; however, only two days later a decree pro confesso was rendered against them. This was error.
Griffith's Chancery Practice, Sec. 261.
No decree pro confesso should have been rendered against any of the defendants until all the defendants were properly in court; they were parties to the will; and it is evident from this record that the heirs of Carrie Fells and the heirs of Clabe Dorsey were never properly summoned.
Griffith's Chancery Practice, Sec. 263.
They were not even mentioned in the citation notice; and the proof of publication, for those who were summoned therein, was not filed with the court until May 15, 1945; and the record affirmatively shows that the learned chancellor rendered a final decree in this matter, as to all parties, on May 7, 1945 (a week before the proof of publication was filed). This was manifestly error.
Griffith's Chancery Practice, Sec. 238.
Price, Phillips Alford, of Magnolia, for appellee.
These attorneys for appellee were not employed until after the due date of the brief in this Court. This is an appeal seeking to reverse decrees of the chancery court of Franklin County, Mississippi, wherein appellants were adjudicated to have no right, title, interest or claim in and to the lands described and such claims as were asserted or pretended were cancelled as against all parties to this cause, and as an incident to the decree, the title of Joe Dorsey was confirmed, he having admitted appellee's rights by his answer and having performed the option and conveyed the timber to appellee. The affirmative pleadings by appellee were that he had a perfect equitable title to the timber on the lands described in the bill by virtue of his option from Joe Dorsey, whom appellee shows in his bill of complaint as amended and supplemented held a perfect legal title to the lands by inheritance from his father, Townsell Dorsey, and from his mother, Caroline Dorsey, and by purchase from his sister, Celia Dorsey. The widow, Caroline Dorsey, and the said Joe Dorsey and Celia Dorsey, children, were the sole and only heirs at law of Townsell Dorsey, deceased, and Joe and Celia were the sole and only surviving heirs of Caroline Dorsey, deceased. The pleadings show further that Joe Dorsey had been in the adverse possession of said property for a period of more than 19 years not only as against the defendants but against the whole world. The bill with amendments prayed for cancellation of the pretended claims of all defendants as against the land or timber and that these pretended claims be cancelled as clouds on the title of the appellee to the timber and of the defendant in the original cause, Joe Dorsey, as to the land. The bill also set up the fact that the will of Caroline Dorsey, insofar as the land described therein is concerned, is void on account of her failure to name a beneficiary therefor. Neither of Appellants interposed any defense and they were all before the court. Joe Dorsey by his answer admitted the right of the appellee to have his option to purchase the timber specifically performed and while not a part of this court record the records of Franklin County, Mississippi, show that the said Joe Dorsey did actually convey the timber on said lands to the said W.J. Sullivan, the appellee. Joe had lived on the land all of his life until the death of his mother, Caroline, in about 1926 and after her death continued to reside on said land, claiming it as his own by inheritance and purchase and adversely against all parties.
The only question involved in this cause is whether the appellants have any interest in the lands described by virtue of the will of Caroline Dorsey, deceased. They are definitely shown not to be heirs of Townsell Dorsey nor of Caroline Dorsey, but are named in the will of Caroline Dorsey as beneficiaries entitled to receive one dollar. The will recites: "One Dollar $1.00 each Celia Dorsey, Cinda Bell and Carrie Fells, Francis Brooce, Camie Dorsey, Will Dorsey and Clabe Dorsey and Wiley Dorsey." There is then the further provision: "And all the balance of my estate both personal and real to wit." Here follows a description of the land and the appointment of an executor but nothing more. There is no beneficiary named for the property and no residuary clause in the will. It is clear, therefore, that Celia Dorsey died intestate as to the lands described in the will since no beneficiary therefor was named. The heirs of Caroline Dorsey, as shown by the pleadings duly sworn to and not denied, were Joe Dorsey and Celia Dorsey, who took the lands by virtue of the statutes of descent and distribution of the state.
Chrisman v. Magee, 108 Miss. 550, 67 So. 49, 901; Keeley v. Adams, 149 Miss. 201, 115 So. 344; Morris v. Henderson, 37 Miss. 492; Code of 1942, Secs. 468 et seq., 473.
It is not considered necessary to reply to any portion of appellants' brief other than as set out above, for the reason that appellants having no interest in the land cannot complain of the decrees entered.
Appellee filed his original bill in the Chancery Court of Franklin County against several defendants, including Joe Dorsey. No process was ever served on some of the defendants, and the process on others was defective. We cite only one instance: "The heirs of Clabe Dorsey who are unknown to your complainant," and the record does not show that they ever appeared, nor was the bill dismissed as to them. However, process was validly served on some others of the defendants.
The suit involved 808 acres, more or less, in Franklin County, approximately half of which was so indefinitely described as probably to make the description legally void.
There was no evidence heard by the trial court whatever; but the original bill charges that the land involved belonged to Townsell Dorsey, dead many years at the time of the suit, who was survived by his heirs at law, Caroline Dorsey, his widow, and Joe Dorsey and Celia Dorsey, his children, and "That at the time of his death he owned the following described land" (then describing it).
Caroline and Celia died in Franklin County some years before the trial. It is charged that Caroline died first, so that her interest descended to Joe and Celia and the interest of Celia was purchased by Joe Dorsey, who was charged in the original bill to be the sole owner of the land.
It is averred on the 7th day of August, 1944, appellee obtained an option from Joe Dorsey to purchase the timber upon the lands for a certain sum to be paid later, and that the appellee within the time had tendered Joe Dorsey the agreed purchase price and demanded a deed. Joe Dorsey had agreed to execute a deed, but had not done so. Appellee deposited the money in the bank so that he was ready, willing, and able to pay the agreed purchase price to the said Dorsey who, however, failed or refused to comply with the terms of the option by executing a deed to appellee.
It is averred further that on the 9th day of September, 1916, Caroline Dorsey, the aforesaid widow of Townsell Dorsey, attempted to make a will disposing of the property involved in the suit, which is branded as null and void as it related to the above described land, because it did not name any persons as legatees of it. The will had been admitted to probate.
The title is not deraigned, and the excuse therefor was that the lands were all derived from a common source, namely, Townsell Dorsey, and for that reason it was not necessary to go beyond him in the chain of title. The prayer of the original bill was that the title of the land be confirmed in Joe Dorsey, and for specific performance by Joe Dorsey of the option agreement, by requiring him to convey the land to appellee; and that the will of Caroline Dorsey be "cancelled as a cloud on the title of Joe Dorsey."
The original bill, so far as the confirmation of title is concerned, must come within the requirements of Section 1314, Code 1942, among which are — "and where the names of persons in interest or their places of residence are unknown and have not been ascertained by diligent inquiry the bill shall so state; and where the name and places of residence of persons in interest are given they shall be made parties defendant; and where the bill shall show that the persons interested are unknown to complainant and that he has made diligent inquiry for their names and could not obtain them, all persons interested may be made defendants by a notice addressed: `To all persons having or claiming any interest in the following described land, . . ., viz: (Describing the land . . .);' and the notice shall state the nature of the suit." This was not done here. When final decree was entered in this case, the record was not in condition to justify it.
The original bill furthermore seeks to "cancel" a will, already probated. Perhaps the pleader meant to ask for a construction of the will, seeking the effect that it did not convey title to the real estate, on the alleged charge that the land, although set out therein, was devised to no named legatees. Section 473, Code 1942. If so, all the beneficiaries should have been under valid process. Hancock et al. v. Reedy, 181 Miss. 830, 180 So. 81. See also Section 506, Code 1942. However, the prayer was for its cancellation as a cloud upon the title of Joe Dorsey. The procedure as to removing clouds on title is governed by Section 1324 et seq., Code 1942, which sections provide, among other things, that "any person having the equitable title to land may, in like cases, file a bill to divest the legal title out of the person in whom the same may be vested, and to vest the same in the equitable owner," which, in this case, would be the appellee. The original bill, however, does not deraign the title in "plain and concise language," and its reason for not doing so is insufficient. Section 1325, Code 1942. The bill states that, at the time of his death, Townsell Dorsey "owned" the land. This is not sufficient in a deraignment. The bill was demurrable because it failed to show facts of Townsell Dorsey's title. Thames v. Duvic, 89 Miss. 9, 42 So. 667. The statute makes such a mere declaration as to a complainant being the real owner of the land insufficient unless good and valid reason be given why he does not deraign his title. We think the same is true about the alleged common source of title. A bill of complaint in a proceeding requiring deraignment of title does not state a case against defendants thereto unless the deraignment be sufficient, since complainant must depend upon the strength of his own title and not the weakness of that of his adversary.
The above errors and deficiencies in the original bill are sufficient to point out its faulty character. Perhaps, sensing this, appellee filed an amendment asking conditionally for partition between the heirs of Caroline Dorsey and Joe Dorsey, and that he be adjudicated to have whatever interest in the timber belonged to Joe Dorsey, and that the heirs of Caroline Dorsey be given the part that would have gone to her had she been alive. The amendment concluded with a prayer in the following language: "That the timber be partitioned and be sold for partition and that your complainant be adjudged to be the owner of whatever interest in said timber that the said Joe Dorsey has, and that said timber be sold for partition and the proceeds divided between the owners as their interest may appear."
The appellee did not content himself with the pleadings to which reference has already been made, but filed an amendment to the original bill making seventeen parties defendant, alleging that they claimed some interest in the property involved and denying their interest. The amendment asked for process and adjudication of any rights the new defendants might have in the property.
Not content with these two amendments, appellee filed what he termed a "supplemental bill," making a number of the parties brought in by the amendment last mentioned, parties to the supplemental bill. Process by publication was made for the parties listed in the supplemental bill. It is unnecessary to discuss whether or not the publication was effectual. Joe Dorsey answered and admitted everything that appellee charged in his pleadings, and is not an appellant here.
On February 20, 1945, sixteen of the defendants moved the court for sixty days within which to file an answer, and on the same day the court entered an order sustaining said motion and setting the case for trial on the first Monday of the next term of court at Meadville, which was May 7, 1945, at 10 o'clock A.M. On the same day a decree pro confesso was entered against Cammie Dorsey, Will Dorsey, and Wiley Dorsey, appellants here, and some other parties who were not among the movants for time. However, Wiley was. On February 22, 1945, appellee moved the court for authority to amend his pleadings in order to assert title in Joe Dorsey by adverse possession, which motion was sustained by the court and such amendment filed the same day. No process was had thereon. On the same day decree pro confesso was rendered against Cammie Dorsey, Will Dorsey, and Wiley Dorsey, the appellants, and others, which was two days after the sixty days had been granted certain defendants within which to plead. On the same day that the decree pro confesso was entered what is termed in the record as a final decree thereon, was entered against the same defendants therein. On the 3rd of May some defendants filed their answer and cross bill, on which there was no process, and demurrer, to appellee's pleadings, but on the 7th day of May, 1945, four days later, without taking any proof, the trial court entered a final decree against certain named defendants. It will be recalled that not all of the defendants were ever in court by any known valid form of process, and some of them were apparently never sought to be put under process before this final decree was entered.
In Griffith's Miss. Chan. Prac., Section 263, the rule is declared to be that "the court will not proceed to a final decree as to any defendant until the cause is triable as to all the defendants," citing Hunt v. Walker, 40 Miss. 590; Kelly v. Brooks, 57 Miss. 225, 227.
In Section 556 of the same work, the rule is that "Where there are several defendants, the cause is not ready for trial as to one, until ready as to all, of the defendants," citing Kelly v. Brooks and Hunt v. Walker, supra.
In spite of the condition of the record, and other manifest defects therein not enumerated, the final decree confirmed the title to the controverted lands in Joe Dorsey; declared the will of Caroline Dorsey null and void for lack of devisees of the land; adjudged title in Joe Dorsey by adverse possession; and enjoined all of the defendants perpetually from asserting any right, claim, or interest in said lands. Strangely, there was no provision in the decree for specific performance of the option agreement between Joe Dorsey and appellee, a primary purpose of the suit.
Only three of the parties defendant appealed from the decree of the trial court, and since, in our judgment, the final decree of the chancery court was wholly ineffectual, and validly accomplished no purpose sought by the appellee against the adverse parties, including the appellants, we are constrained to reverse and remand the cause for them pursuant to their appeal. Section 1156, Code 1942; United States Fidelity Guaranty Co. v. Rice, 184 Miss. 443, 185 So. 563, 186 So. 620; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; Dalton et al. v. Rhodes Motor Co., 153 Miss. 51, 120 So. 821.
So ordered