Opinion
February 28, 1949.
1. Equity procedure — cross-bill, demurrer to sustained, case stands to be heard on original bill, answer thereto and testimony to be taken.
When a demurrer to the cross-bill has been sustained, the answer to the original bill remains nevertheless in the case and it is error to render decree on original bill when there was no testimony before the court.
2. Equity procedure — taking case under advisement to be heard and determined in vacation — what is meant by vacation.
When, as authorized by statute, a case is taken under advisement to be heard and determined in vacation, although the order recites that it is so made by consent of the parties, the vacation meant is the period between the adjournment of the regular term at which the cause was thus taken under advisement and the convening of the next following regular term in due course, and if a decision in the case has not been rendered by or before the said next following regular term the case becomes subject to disposal at that term and at that term a new order is necessary to carry the case over into the succeeding vacation. Sec. 1228, Code 1942.
3. Decrees — vacation decree rendered at an unauthorized vacation period — void.
When except by the express consent of the parties at or for the time ad hoc a decree has been rendered in vacation without an order entered at the next preceding regular term of court, taking the case under advisement to be determinedd in vacation, the decree is void and being void may be attacked collaterally anywhere and at any time. Sec. 1228, Code 1942.
4. Partition — tenancy based on void decree — cross-bill showing and replyig that fact not demurrable.
When a title in partition bases the complainant's tenancy in common upon a void decree previously rendered and the defendant answers and shows that the decree was void and that except for the void decree the complainant would have no interest which he could assert against the defendant, and the defendant by her cross-bill prays that the complainant's claim be cancelled as a cloud on her title it is error to sustain a demurrer to the cross-bill.
Headnotes as approved by Smith, J.
APPEAL from the chancery court of Pike County, R.W. CUTRER, Chancellor.
Howie, Howie McGowan, and E.W. Montgomery, II, for appellant.
The court erred in decreeing to complainant the relief prayed for in the original bill, without any proof to support the material allegations of the bill, all of which had been denied in the answer and put in issue.
The burden of proof is on the complainant to establish by a preponderance of the proof every material allegation of the bill that is denied in the answer, and to show thereby his right to a decree. Griffith's Mississippi Chancery Practice, Section 563, at
But here, on the sustaining of the demurrer to the defendant's cross-bill, the court proceeded, on May 8, 1948, to award a decree to complainant without any testimony whatever being taken to support the allegations of the original bill, though all the material allegations in the bill stood denied by the defendant's answer then on file, and without permitting the defendant to offer proof in support of the defenses set up in her answer.
This point is so well taken, and the law upon it is so well established, and the error is so apparent, that it is needless to cite authorities.
It will be seen from the pleadings that complainant and defendant had formerly been husband and wife and that complainant had given to his wife a deed to a house and lot in McComb, Mississippi.
After this marriage was dissolved by divorce and later the husband brought suit to cancel the deed on the ground it had been obtained through fraud, the former wife, who was the grantee in the deed, employed one Mrs. Nell Hunt, a practicing attorney of McComb to represent her in the suit.
Bear in mind that the suit was for cancellation, but on November 5, 1946, in vacation, a decree was entered fixing a one-half interest in the property in the former husband and the other one-half interest in the former wife.
It no doubt appears anomalous to the court, that this division could be made in a suit for cancellation, since the decree necessarily held the conveyance to the wife was valid to a one-half interest, and if valid to a one-half interest was valid to the whole interest conveyed by it, but the final decree proceeds to divide the property between the two litigants, in just that manner.
Under the law, as we understand it, a decree must be within the subject mater of the pleadings, supported by the evidence, and the jurisdiction of the court to render it must be invoked by the pleadings. The court must have jurisdiction of the particular cause — a jurisdiction which is conferred by the scope and contents of the pleadings. It would be utterly inadmissible, in any system making any pretense to the orderly administration of justice to allow a party who has sued for cancellation of a contract on the ground the contract is void to appear at court with his witnesses and thereupon put the defendant to trial on a demand for partition. No argument is necessary to make plainer a proposition already so plain. Any decree of a court dividing property under a bill solely for cancellation is a void decree. The two are inconsistent remedies. Griffith's Mississippi Chancery Practice, Section 29 at page 33, Section 30 at page 34, Section 564 on page 620, Section 567 on page 623, and Section 612 on page 687; Dowd v. Morgan, 23 Miss. 587; Rosenbaum v. Hammack, 96 Miss. 462, 51 So. 213; and Berry v. Bullock, 81 Miss. 465, 33 So. 410.
The decree of November 5, 1946, is void for another reason. The decree recites "the court having heard same at the February, 1946 term and same was submitted to the court on briefs, all parties agreed for the final decree to be rendered in vacation . . ."
In Union Motor Car Co. v. Cartledge, Sheriff, et al., 133 Miss. 318, 97 So. 801, at page 804, the court defined "Vacation" as follows: — "Vacation as applied to courts means the period of time elapsing between the end of one term and the beginning of another."
The court takes judicial notice of statutes fixing the various terms of the courts. Richards v. Town of Magnolia, 100 Miss. 249, 56 So. 386. Hence the court will take judicial notice of Chapter 313, Laws of Mississippi of 1944, providing terms of the chancery court in Pike County to be held on the second Monday of February, the third Monday of April, the fourth Monday of August, and the first Monday of December.
The "Vacation" after the February, 1946, term, referred to in the decree of November 5, 1946, was, therefore, that period of time elapsing between the end of the February term and the beginning of the April, 1946 term. This is the clear holding in Union Motor Car Co. v. Cartledge, Sheriff, et al., (supra), 133 Miss. 318, 97 So. 801.
The agreement extended only to that vacation, between the February and April terms, as a matter of law.
The same is true of orders entered upon the Court Minutes for taking under advisement for decision in vacation of causes heard in term time, as was held in Union Motor Car Co. v. Cartledge, Sheriff, et al. (supra), 133 Miss. 318, 97 So. 801, and any decree or judgment rendered in vacation after the beginning of the next succeeding term without a new order to decide in vacation is void.
Here, the April and August, 1946 terms had both intervened between the February, 1946 term, at which the case was tried, and November 5, 1946, when the final decree was rendered in vacation. The decree was absolutely void for this reason and the cause in which it was rendered remained a pending cause, Callicott v. Horn, 137 Miss. 318, 97 So. 801; Union Motor Car Co. v. Parmer, 151 Miss. 734, 118 So. 425; see also Griffith's Chancery Practice, Section 594 on pages 663 and 664 and Note No. 6 thereto; See also Wilson v. Rodewals, 61 Miss. 228; Hammond-Gregg Co. v. Bradley, 119 Miss. 72, 80 So. 489; Coopwood v. Prewett, 30 Miss. 206.
Now, there was a deed of record conveying the property to defendant's wife, which deed he attacked in his bill in the suit leading up to the void decree of November 5, 1946, and after the rendition of that void decree that deed still stood upon the County records as valid in the eyes of the law.
Cross-complainant, in her cross-bill, alleged the validity of the deed, the invalidity of the decree of November 5, 1946, dividing the property; claimed the entire title to the property and prayed for a cancellation of her former husband's claims as a cloud on her title. This cross-bill stated a valid cause of action, germane to the original bill. The subject matter of the cross-bill arose out of the same transactions involved in the original bill, was material for affirmative relief and was necessary in order to secure in the one suit a full, complete and final determination of all of the issues between the parties to the suit. This doctrine is discussed fully in Griffith's Chancery Practice, Section 381, page 386, and under that authority the cross-bill stated a good cause of action, was germane to the bill, and it was error for the court to sustain the demurrer to it.
The complainant's bill was for a partion. To maintain it he must show himself to be a tenant in common in the property. The deed to his former wife was of record and was referred to in his original bill for partition. In this bill for partition he predicated his tenancy in common on the void decree of November 5, 1946, above discussed, and which "divided" the property between his and his former wife, giving each of them a one-half interest therein. This void decree was his sole source of title. It showed on the face of the pleadings as a void decree. The face of the pleadings showed him to not be vested with any interest in the house and lot. The face of the pleadings showed the defendant to be the holder of the full title under a deed from him. It was not necessary for the cross-complainant to introduce evidence in support of her deed. This was a partition suit and the complainant did not in his original bill attack the validity of the deed in this suit. The pleadings in this suit joined no issue upon its validity. Hence, it was not necessary for the cross-complainant to introduce any evidence in support of her title to the whole fee. Cross-complainant's ownership there stood undenied to the whole fee. The court should have entered a decree cancelling cross-defendant's claims as a cloud upon cross-defendant's claims as a cloud upon cross-complainant's title.
James A. Wiltshire, for appellee.
The decree complained of, although it is not the decree in the case at bar, not the decree appealed from is to quote: "This cause coming on to be heard on bill of complaint, answer of the defendant and oral and documentary evidence heard in open court, both the complainant and defendant and their attorneys appearing in open court, in person, and agreeing to try and render decree in vacation, the court having heard same at the February term 1946 and same was submitted to the court on briefs, all parties agreeing for final decree to be rendered in vacation, . . . ." It is Horn Book law that a collateral attack cannot be made on a final decree like this — that all his defense to suit No. 11,856 is, namely, a collateral attack on the final decree in Case No. 11,812.
"When a court has jurisdiction of the parties and the subject matter, its judgments, although irregular in form, or erroneous or mistaken in law, is conclusive, cannot be collaterally attacked." State v. Ricketts, 67 Miss. 409, 7 So. 282; Moore v. Ware, 51 Miss. 206; Wall v. Wall, 28 Miss. 409.
No witnesses testified in this case, which was a suit by appellee against appellant for partition of a residence and lot, but the Chancellor rendered a decree granting the prayer of the original bill, from which decree this appeal was prosecuted.
From the pleading we glean certain factual issues, and also certain undisputed facts. So, we go to the pleadings.
The original bill averred that the parties hereto had formerly been married, but were divorced at the time of the litigation. During the period of their matrimonial alliance appellee purchased the property involved in the lawsuit. Before the divorce, the bill further charges, the appellant "by fraud and undue influence induced him to deed the property to her . . . . which he did but the deed was never delivered and was not to be recorded but was to protect her in the event complainant died to keep his son under another marriage from partitioning and dividing the property and so as to assure her a home there after he died, and the deed was not to be delivered or recorded until after his death, if he died first. The deed was dated April 11, 1939. Then on February 18, 1943, . . . she, the defendant, stole the deed from among his papers, while they were having one of their many disagreements and fights and had the same filed." Afterwards, the appellee filed a suit to cancel this deed or to have the property partited. The Court divided the title to the house and lot, one half to each. On the foundation of that decree the appellee filed the suit at bar, seeking a sale of the property for division of the proceeds. The original bill did not waive answer under oath.
Appellant filed an answer, admitting the execution of the deed to her, which was without "fraud or undue influence", and averring that it was done of appellee's own free will and accord. She categorically denied the other related averments in the original bill, but charged affirmatively that "Roosevelt Jackson, did, in fact, have said deed recorded and that she was with him when he had the same recorded . . .". The answer claimed that the suit to which appellant referred was for cancellation only, and that the decree therein granted by the Chancellor was signed in vacation, "without the entry of any order of the court authorizing the entry of such decree in vacation". Appellant, then, relying on the invalidity of the aforesaid adjudication denied tenancy in common and that appellee owned any interest in the land. This answer was sworn to.
Appellant also filed a crossbill which repeated the factual averments and denials of the answer, and in addithereto reviewed the history of the former court proceeding. She pointed out that, while a decree in that case, rendered at the February term 1946 of Chancery Court recited an agreement of the parties for a hearing and decree in vacation, the regular April and August terms of that Court intervened before the final decree was signed on November 5, 1946, when the Court was not in session. No order was entered by the Chancellor at either the April or August terms of Court taking the cause again under advisement, which would ultimately have been required to have been re-entered at the August term 1946, to authorize the vacation decree November 5, 1946. This was not done, and the cross bill charges that such decree so rendered was therefore void, and did not legally affect her sole title to the land, or give to appellee any interest in it on which to base his prayer for partition. She therefore prayed that "the claim of the cross-defendant herein be cancelled as a cloud upon the title of the cross-complainant."
There was no answer to this crossbill but appellee interposed a general demurrer, interspersed with a few grounds of special demurrer. However, we notice only the general demurrer, — that there is no equity on the face of the bill. We think there is, and that the demurrer should have been overruled.
(Hn 1) However, let us suppose it was sustained properly and the crossbill properly dismissed, the answer of appellant was still on file, and the Court should then have heard the case on bill, answer and proof, instead of then and there entering a final judgment for appellee, when there was no testimony before the Court.
We have heretofore decided the specific issue set up in the crossbill, favorably to the contention of appellant, and contrary to the ruling by the Chancellor, in dealing with a statute conferring certain vacation powers upon circuit judges, including rendering judgments and delivery of opinions. (Hn 2) We held that, in cases taken under advisement at a term of court for such purposes in vacation, "vacation" means that period between the ending of one term and the beginning of the next; and where a decision is not rendered by the beginning of the next term, the case becomes subject to disposal in term time and it requires a new order to carry the case into the next succeeding vacation. A judgment rendered after the next succeeding term without a new order to decide it in vacation being entered is void. Union Motor Car Co. v. Cartledge, Sheriff, et al., 133 Miss. 318, 97 So. 801. In the case at bar, two regular terms of the Chancery Court intervened between the February term 1946, at which the order of advisement was entered, and the non-court date in November following when the final decree was entered. It was, therefore, void and conferred no rights on appellee.
There was no consent for further advisement at the August term, the last term before the so-called vacation decree, and, consequently, the Court had no power of adjudication in November 1946. Callicott v. Horn, 137 Miss. 693, 102 So. 850, and cases cited in the opinion of the Court.
Our views here are further supported by Union Motor Car Co. v. Farmer, 151 Miss. 734, 118 So. 425; Section 594, page 664, Griffith's Chancery Practice; Dulaney v. Dulaney, 181 Miss. 36, 178 S. 814.
(Hn 3) Counsel for appellee bases his argument for affirmance on two grounds: 1. That the crossbill is a collateral attack on the decree in the first suit of appellant. Even if that were true, to which we do not agree, the decree in the former case, being void, may be attacked collaterally, anywhere and at any time. 2. The case of Rayl v. Thurman, 156 Miss. 8, 125 So. 912, 914, in which was involved the construction of a decree, as to which we said: "The words in the order must be construed, therefore, as having been used in the legal sense, namely, that all the parties submitted the cause for decree in vacation". This holding is not in conflict with the case of Union Motor Car Co. v. Cartledge, supra, defining vacation in the legal sense, since, in its legal sense, "vacation" means the period between the adjournment of the regular term of court at which the cause was taken under advisement and the convening of the following regular term of court in due course. Rayl v. Thurman is not in point on the precise issue before us, in the case at bar.
(Hn 4) We are of the opinion that the demurrer to the crossbill should have been overruled, the cross-defendant permitted to answer, if he so desired, and the cause heard on original bill, answer, crossbill and answer thereto, and proof on the merits. Certainly no final judgment should have been entered while the answer was on file and undisposed of, without proof. We, therefore, accordingly reverse and remand the cause for hearing on the merits.
Reversed and remanded.
Montgomery, J., took no part in this decision.