Opinion
No. 27530.
April 22, 1929.
WILLS. Contingent remaindermen were not necessary parties to proceeding for sale of real estate to discharge accumulated annuities without affirmative showing of existence of persons with vested interest ( Hemingway's Code 1927, section 1822).
Under Code 1906, section 2079 (Hemingway's Code 1927, section 1822), requiring citation of all parties interested in petition to sell or lease land to pay debts or otherwise affecting real estate of deceased person, contingent remaindermen under will creating residue subject to life annuity were not necessary parties to proceeding for sale of lands for the purpose of discharging accumulated annuities, in absence of affirmative showing of existence of some person with vested interest in remainder.
WILLS. Appointment of county chancery clerk authorized sale by person holding office at time of sale.
Where decree authorizing sale of lands of estate for purpose of paying accumulated annuities appointed as commissioner the chancery clerk of county, the sale under such appointment was properly made by person holding office of chancery clerk at time of sale, regardless of whether he held office at time of decree ordering sale and making appointment.
APPEAL from chancery court of Yazoo county, HON. V.J. STRICKER, Chancellor.
Wise Bridgforth, for appellant.
Sale void for want of proper parties. The proceedings in which the sale now questioned was made, being a suit to construe a will and enforce a lien on lands, alleged to be fixed thereon by the terms of the will, is a suit in equity; and those persons are proper and necessary parties to this suit who would be such in accordance with the general rules of equity, and the old High Court of Chancery procedure. As it is generally expressed, "All persons who are materially interested, legally or equitably, in the subject-matter of the suit, ought to be made parties therein." Griffith's Miss. Chan. Prac., sec. 102; Story's Equity Pleading (10 Ed.), sec. 72, et seq. The interest of a necessary party in the subject-matter of the litigation is that interest which is either legal or equitable in character, and present and immediate, or future and remote in time. Griffith's Miss. Chan. Prac., sec. 103; Story's Equity Pleading (10 Ed.), sec. 137; 15 Enc. of Pl. Prac., 592-597, inclusive. Unquestionably all vested remaindermen must be made parties in all suits affecting title to land — such as this suit is. McIlroy v. Alsop, 45 Miss. 365; Hunt v. Booth, Freeman's Chancery (Miss.) 215; Bland v. Bland, 105 Miss. 478, 62 So. 641; 15 Enc. of Pl. Prac., 594.
While there is a diversity of opinion in regard to whether or not contingent remaindermen are necessary parties, it has been determined in Mississippi that contingent remaindermen, in esse, are such, and that they should be made parties to a proceeding affecting the title to the lands in which they are interested. Cannon v. Barry, 59 Miss. 289; 15 Enc. of Pl. Prac., 595-596. In Cannon v. Barry, supra, one Cannon deeded certain lands to three trustees, the survivor of them and the heirs of the latter, in trust for the use and benefit of his son, R.L. Cannon, for life, remainder to use and benefit of all R.L. Cannon's children who should attain the age of twenty-one years or marry, and alternatively, in default of children of R.L. Cannon who should attain majority or marry, in trust for the use and benefit of J.N. Cannon during life, remainder to use and benefit of such of his children who should reach the age of twenty-one years or marry, and, in trust, alternatively, for others in default of that contingency. On the death of the grantor, R.L. Cannon took possession of the lands and lost his interest therein by foreclosure of a lien, created by him to one Barry, who committed waste thereon. During R.L. Cannon's lifetime, suit was brought by his then living children, to enjoin waste and for an accounting, ignoring the trustees named in the deed. This court then held, reversing the court below, that the children of R.L. Cannon were vested remaindermen, and were qualified to bring the suit without intervention of the trustees, and that on the return of the cause to the lower court, J.N. Cannon and his children, if any, although contingent remaindermen, should also be made parties. Not only were the J.N. Cannons contingent remaindermen, but alternate contingent remaindermen, executory limitees of an interest remote indeed. In this case, our court has definitely aligned itself with those protecting the title of contingent remaindermen, in their own right, as real and necessary parties in interest.
After the termination of the trust estate for the life of the survivor of the appellees Powell, the remainder was limited to the children of appellee John F. Powell. If any one or more were in being on the death of the testator, a vested remainder existed in them, as a class, "the children of John F. Powell," held by the living members subject to "open up" for the benefit of all others thereafter born; if no children were then in being a contingent remainder then existed for their benefit, which would become vested when they came into being. From the will, it is impossible to actually determine whether such children did not exist when the will was drawn. The original bill is silent as to whether such children existed when it was filed. Nor do any of the exhibits to the original bill, the answer or the agreement of counsel, enlighten us in this regard. We are therefore "in the air" as to whether the estate of the children of John F. Powell is a vested remainder or a contingent one (contingent only because they are not in being), so far as this record is concerned; yet we cannot assume on this appeal that they do not exist. Named in the will as if possibly existent, we must assume that they then were and now are in being. If children of John F. Powell are or are not in being, an estate exists in the "right heirs" of J.F. Powell, deceased, the testator, but this estate is a contingent interest. This interest, under the authority of Cannon v. Barry, supra, may be termed itself a contingent remainder in them, or more technically may be styled a conditional limitation. Certainly, as far as the question of parties is concerned, their interest is equivalent to a contingent remainder, to take effect on the death of the appellees Powell, without children of John F. Powell or descendants of such, then living.
In the instant case, the parties complainant were naturally only appellees John F. Powell and his wife, Mrs. Virginia Powell, as they were the annuitants, who were seeking to have their annuity declared a lien on the land and to enforce this lien so declared; and the only defendant was H.H. Brickell, trustee of the estate of J.F. Powell, deceased. Not only was no reference made to possible children of John F. Powell, but no effort was made to make any of them, or any of the "right heirs" of the testator, the ultimate limitees, parties. If any children of John F. Powell were in existence on the filing of this suit, they were unquestionably all necessary parties.
Chancery clerk not a legal commissioner. The chancery clerk was not a legal commissioner. The sale of "Dixie Plantation" under order of the court was held by F.J. Love, the chancery clerk of Yazoo county, on the date of the sale. This is in accordance with the decree which held the annuities a lien on the corpus of the estate and ordered a sale to satisfy same. The decree reads, "and the chancery clerk of Yazoo county, Mississippi, is hereby appointed commissioner to make such sale or sales, etc." The court judicially knows that, following the date of the decree, an election was held in accordance with the statutes made and provided, and that the person making the sale, as clerk, was not the person who was clerk at the time the decree was rendered. Commissioners of the court appointed for the purpose of making sales under decrees have long been familiar adjuncts to chancery procedure, and our statutes do but recognize their existence, as such, without providing the terms of their appointment. It is said, however, that it is the usual practice in our state to appoint the chancery clerk commissioner to make all sales, unless there be some special reason to the contrary. Griffith's Miss. Chanc. Prac., sec. 654. Our question is, can the court appoint as its commissioner the holder of the office of clerk in the future, whomsoever he may be, or is the court restricted to the then incumbent of the office when it would appoint the clerk as such — does the court properly appoint the holder of the office of chancery clerk to make a sale at any future date as the need may arise, or must a particular person be appointed who may or may not be the clerk? We find no authority upon this question; but suggest that the appointment of the holder of the office of chancery clerk, as a commissioner, when it is contemplated that the appointment extended beyond the terms of the then incumbent, involves a delegation of the chancellor's power and duty to select a proper commissioner, to the action of the electorate. A person proper to be a commissioner would almost always be elected clerk (as in the instant case), but not necessarily so. It would seem that, as a commissioner is the agent of the court itself, any person, not disqualified by interest or other reason, may be appointed as such, but not some future holder of an office whose special fitness and qualifications cannot be passed upon by the chancellor prior to his election, this very identity being unknown to the court at the time the order was rendered appointing the "holder of the office" a commissioner. See 16 R.C.L. 37; 35 C.J. 25.
The annuity not a lien upon the land. A study of the opinion in Brickell v. Powell, 148 Miss. 491, 114 So. 328, out of which case the instant appeal grew, is very persuasive that, as a matter of original construction, the annuity provided by the will should be held to be, as it there was, a lien upon the lands and all other property constituting a part of the corpus of the J.F. Powell estate. The decision on that appeal, so holding, should be determinative in this proceeding, but for two reasons: The first is the lack of necessary parties, as above shown, to that proceeding, out of which this grew. And the second, equally fatal, is that the will had long before the decision on that appeal been construed by this court, in Brickell v. Lightcap, 115 Miss. 417, 76 So. 489, whereby the nature of the annuity provided by the will, in favor of the appellees Powell, had been determined and fixed. The question of whether or not the annuity was a lien upon the lands and other corpus of the estate was not an "open question" at the time the decision in Brickell v. Powell, supra, was rendered. The nature of the annuity, as fixed by the "Lightcap case," governs and controls its whole future and does so directly against the decision in the "Powell case," because its construction had already become, by the decision of the former case, an adjudicated matter protected by the rule of stare decisis, and the "rule of property" governing titles to lands. Brickell v. Lightcap, supra, was a suit brought by the trustee, the present appellees Powell and certain collateral relatives of the latter who, at the time the original bill was filed, would have been embraced within the terms of the testator's "right heirs," had both appellees Powell been dead, John F. Powell leaving no issue, against one Lightcap who had purchased "Rialto Plantation" and "Springwood Plantation," a part of the estate, under a proceeding brought in the administration of the testator's estate, for the purpose of selling real estate rather than personalty in order to pay the testator's debts. This proceeding was brought under secs. 1818 and 1822, Hem. Code 1927, secs. 2075 and 2079, Code of 1906, the first cited section providing for such a proceeding and the last naming those who are necessary parties thereto. In the proceeding at which Lightcap purchased, a petition had been filed by the executor for sale of lands, under the first cited section, naming the trustees under the will, the predecessors of the present trustee, appellee Brickell, as the only parties; and the trustees appeared and consented to the sale, no other parties appearing. The second cited section of the code provides that all interested parties shall be cited. The present appellees Powell (their appellants), in that case contended, among other things, that they were legatees or testamentary annuitants with a lien upon the lands of the estate, and as such were, under the statute, "interested parties" and therefore necessary parties. If they were necessary parties, of course the sale made in a proceeding in which they did not join or were not joined was void. This court held that the sale was valid, that present appellees Powell, were not, under the statute, parties interested in the property sold to pay the testator's debts by the proceedings brought, but that they were mere annuitants, without any interest in the estate. As said in affirming opinion at p. 437: "By the terms of this will John and Virginia Powell took no estate in the property itself, but are interested solely in the monthly installments which the trustees are to pay to them out of the rents, issues, profits, and income." By that decision, this honorable court accepted the contention of Lightcap that the annuity in favor of the present appellees Powell was merely a "yearly payment of a certain sum of money, granted to another in fee, or for life, or for years, and changeable only in the person of the grantor." In so doing, this court rejected the contention of the present appellees (both the Powells and trustee Brickell), that appellees Powell, as "the mere annuitants, being legatees with a charge upon the property, must have been served with process, and this whether, technically speaking, they had an estate in the lands or not." Had the will of J.F. Powell, deceased, made the annuity a lien upon the lands, a lien upon the corpus of the trust estate, then the decision reached in Brickell v. Lightcap, supra, could never have been rendered. Of course the annuity provided the appellees Powell, solely by the will, was a legacy. Heatherington v. Lewenberg, 61 Miss. 372 (cited in Brickell v. Powell, supra). And it seems very clear that this legacy should, as an original proposition, be held to be a lien upon the lands of the estate, for it seems that the testator intended the annuity to be paid at all events. Brickell v. Powell, supra; Perkins v. First National Bank, 81 Miss. 361, 33 So. 18; Knotts v. Bailey, 54 Miss. 235, 28 Am. Rep. 348. It is absolutely certain that an annuitant, whose annuity is a charge upon lands, may have recourse to the chancery court, for the enforcement of the lien of the annuity so charged, by a judicial sale of the lands. Cady v. Cady, 29 Miss. 425, 7 So. 216; 3 C.J. 219. In fact such procedure is that adopted here by appellees Powell to enforce the lien so claimed by them under the will. Then an annuity which is a charge upon lands, by virtue of a will or other instrument, creates a lien similar to an equitable mortgage on lands, as such mortgages exist without statutory aid, and the annuitant holding such an annuity is an owner pro tanto — has a qualified ownership, at least. We may then say that, if appellees Powell had an annuity charged upon the lands, they were legatees under the will — devisees of a qualified interest in the lands on which it was charged. In construing sec. 2079, Code of 1006, sec. 1822, Hem. Code of 1927, in Brickell v. Lightcap, supra, with reference to whether or not appellees Powell were or were not necessary parties to the proceedings leading up to the sale questioned in that case, Judge STEVENS said: "Under any petition to sell, the heirs or devisees — those who own the estate sought to be sold — must be made parties. This is the plain and simple meaning of the statute, and this is the meaning which our court has uniformly given the statute in question." 115 Miss., pp. 433-434, 76 So. 494. If the court, in the "Lightcap case," had held that the annuity was a lien on the lands, and had also held the appellee unnecessary parties, under the statute cited, it would have so construed the statute as to render the same unconstitutional — the statute would, as so construed, take property without due process of law, for when the annuitant is denied the right of a hearing on the sale of the property securing his annuity, his property has been so taken. Undoubtedly, then, the direct holding of Brickell v. Lightcap, is that the annuity of the appellees Powell is no lien on the lands, constituting any part of the corpus of the J.F. Powell estate. Holmes Holmes, for appellees.
Question of necessary parties. This case is controlled by the cases of Brickell v. Lightcap, 115 Miss. 417, 76 So. 489, and Brickell v. Powell, 148 Miss. 491, 114 So. 328, and the decisions of these cases have become a "rule of property" governing the title to real property involved. The decree under which the sale in question was made, and which decree was affirmed by this court in Brickell v. Powell, supra, was rendered in a proceeding by John F. Powell and Mrs. Virginia B. Powell, annuitants under the last will and testament of J.F. Powell, deceased, against H.H. Brickell, trustee of the estate of said decedent, to subject the lands of the decedent to the payment of annuities provided for in the will of the decedent. The objection is raised on this appeal that contingent remaindermen under the will of the decedent were not made parties to said proceeding, and that the decree rendered is therefore void, and that the sale of Dixie Plantation, the subject of this appeal, is likewise void, and accordingly passes no title, and that the confirmation of the sale by the chancellor was therefore erroneous. It can profit nothing to join opposing counsel in their intricate discussion of the question of necessary parties. This question, in so far as this appeal is concerned has been definitely settled by Brickell v. Lightcap, 115 Miss. 417, 76 So. 489, which decision has become a "rule of property" affecting the title to the real estate of the decedent under his will, and will not now be disturbed. Opposing counsel's elaborate discussion of the question of necessary parties to proceedings for the sale of the lands of the decedent presents views which were repudiated by this court in the Lightcap case, supra, and which, in view of the decision of the Lightcap case, supra, cannot be considered on this appeal. Counsel opposite seek, however, to draw a distinction between the proceeding to subject the lands of the decedent to the payment of annuities, and the proceeding in the Lightcap case, which was a proceeding by the executor to sell the lands of the decedent in preference to personalty, for the payment of debts. In undertaking to make this distinction counsel argue that the former proceeding is an ordinary suit in equity, and that the general rules of equity with reference to proper and necessary parties apply, and that the latter proceeding is a proceeding under the statute, and is controlled by the statute on the question of parties. Under the guise of this so-called distinction counsel opposite seek to evade the application of the Lightcap case, supra, to this appeal. In the first place, the distinction sought to be drawn by counsel is not sound, and in the second place, even if there be such distinction, the Lightcap case, supra, is still controlling, because that case holds that under the will of the decedent there are no remaindermen in esse to be made parties to a proceeding for the sale of the decedent's lands, and that the trustee under the will is the only necessary party.
Insofar as concerns the question of parties, there is no distinction between a proceeding by the annuitants to subject the lands of the decedent to the payment of their annuities and a proceeding by the executor to sell the lands of the decedent in preference to personalty for the payment of debts. The primary object of both proceedings is to subject to sale the lands of the decedent. Both proceedings are proceedings "affecting the real estate of a deceased person," and both are within the statute construed in the Lightcap case, which is sec. 2079, Code of 1906, sec. 1746, Hem. Code 1917, sec. 1822, Hem. Code 1927. It will be observed that the foregoing statute is applicable to a proceeding to sell or lease the lands of a deceased person for the purpose of paying debts, and is also applicable to a proceeding "otherwise affecting the real estate of a deceased person." A proceeding by annuitants under a will to sell the lands of a deceased person for the purpose of paying annuities is certainly a proceeding otherwise affecting the real estate of a deceased person, and is just as much within the statute quoted as is a proceeding for the sale of lands of a deceased person for the purpose of paying debts. In the Lightcap case the executor sold lands of the decedent to pay debts, and the court in that case held that the trustee was the only necessary party to the proceeding, and further held that there were no remaindermen in esse to be made parties thereto. The decree authorizing the sale of Dixie Plantation, the subject of this appeal, was rendered in a proceeding by the annuitants under the will of this same decedent for the sale of lands of this same decedent to pay the annuities. The statute construed in the Lightcap case applied to all sales or leases of real estate of a deceased person for the purpose of paying debts, and likewise applies to any proceeding "otherwise affecting the real estate of a deceased person." There can be no distinction, therefore, between the proceeding for a sale to pay debts and a proceeding for a sale to pay annuities, in so far as the applicability of the statute in question is concerned. This being true, the Lightcap case is controlling, on the question raised on this appeal as to parties.
Even if it be conceded, however, that there is a distinction, as claimed by opposing counsel, in the two proceedings, the decision in the Lightcap case which deals with the same will under consideration on this appeal, and which deals with lands of the same decedent, forecloses the question raised on this appeal as to parties. The contention of opposing counsel is that the proceeding for the enforcement of annuities being an ordinary suit in equity, and the question of proper and necessary parties being determined in accordance with the general rules of equity, contingent remaindermen should have been made parties to the proceeding. The Lightcap case completely answers this contention. In the first place, the general rules of equity as to parties should be no broader than the statute quoted, which statute provides that "all parties interested" shall be summoned. At page 438 of the Lightcap case, the court says: "There are then no persons in esse with the vested interest in the remainder . . . If then the collateral kin who are here suing have any interest whatever, the interest is contingent, and not vested. They may never have any interest in this estate. They had no vested interest at the time the plantations were sold to Mr. Lightcap." The court held in that case, therefore, not that the trustees represented contingent remaindermen, but that they were not entitled to be represented.
In order to further escape the effect of the Lightcap case, counsel opposite would have the court on this appeal assume that there is in being a child of John F. and Virginia B. Powell. They do not say that there is a child, because such is not the fact, and no showing that there was a child was or could have been made in the case of Brickell v. Powell, 148 Miss. 491, wherein a charge was fixed on the lands for the payment of the annuities. They would ask the court, however, to assume such to be the fact. This cannot be assumed by the court on this appeal. We therefore respectfully submit that the Lightcap case, supra, is controlling as to the question of parties on this appeal, and that that decision is a "rule of property" affecting the title to the real property of this decedent, and that the parties dealing with the property of the decedent under his will have had the right to rely upon it, and that it must be adhered to.
Contention that chancery clerk not legal commissioner. It is contended by the appellant that F.J. Love, chancery clerk of Yazoo county, who made the sale as commissioner was not authorized so to do, and that the sale was therefore void. This is on the theory that the office of chancery clerk was held by Miss Helen Griffin at the time of the rendition of the decree of sale, and that the person making the sale as clerk, that is to say, F.J. Love, was not the person who was clerk at the time the decree was rendered. The decree of sale did not appoint as commissioner the individual holding the office of chancery clerk at the time. It appointed "the chancery clerk of Yazoo county, Mississippi," as commissioner to make the sale. This was in accordance with the usual practice in such cases. Griffith's Miss. Chan. Prac., sec. 654. It was perfectly proper, therefore, to name the clerk of the chancery court as such commissioner without reference to the individual who occupied the office, and such appointment authorized the chancery clerk, whoever he might be, and irrespective of the particular individual occupying the office, to sell the property pursuant to the provisions and directions of the decree. Had the decree named, however, the then chancery clerk in the official capacity as such chancery clerk to make the sale as commissioner, and the individual then occupying the office became succeeded by another, such successor would have been authorized to make the sale, and on the confirmation thereof the same would have been valid. This is expressly provided for by sec. 430, Hem. Code 1927, sec. 418, Hem. Code 1917.
Contention that annuity not a lien. It would seem that this question having been so recently decided by this court in the case of Brickell v. Powell, 148 Miss. 491, would admit of no further argument. This question was fully gone into and the will construed by this court in the case of Brickell v. Powell, supra, and it was there held that it appearing that the income was insufficient to pay the annuities, resort could be had to the corpus of the estate for the purpose of satisfying the same, and it was in that case that this court affirmed the decree under which the sale of Dixie Plantation to the appellant, Swayze, was made. Counsel contend, however, that the decision in Brickell v. Powell, supra, holding the annuities to be a charge upon the corpus because of the insufficiency of the income, should be disregarded and held not to be binding on this appeal, because they say that the decision in the Lightcap case, supra, necessarily held the annuity not to be a lien upon the lands of the decedent. In the Lightcap case, however, the will of the decedent was not under review for the purpose of determining whether or not the annuities were a charge upon the corpus of the estate. This question was therefore not considered by the court, and was not decided by the court. As a matter of fact, the annuities could only have been declared a charge or lien upon the corpus upon a showing that the income from the estate was insufficient to pay the annuities. No question of this kind was raised or considered or decided in the Lightcap case. Insofar as the question of parties was concerned in the Lightcap case, the annuitants were not left wholly out of consideration. It will be observed, that the court's position in the Lightcap case with reference to the annuitants was wholly different from that with reference to contingent remaindermen. The court held that there were no contingent remaindermen in esse with a vested interest, and that such were not therefore entitled to be represented. They did not hold that the trustees represented them. They did hold, however, that the trustees represented the annuitants, and that in view of this they were not necessary parties to the proceeding. By the most strained construction, it could not be said that the Lightcap case decided that the annuities were not a charge or lien upon the corpus where it appeared that the income was insufficient to pay the annuities. This question was brought before the court in Brickell v. Powell, supra, and not before. On the showing there made that the income was insufficient to pay the annuities, the court held that the corpus could be resorted to, and affirmed the decree of the Chancellor which directed a sale of the corpus for this purpose. This decision is therefore conclusive, and ought to foreclose further discussion.
In December, 1920, H.H. Brickell, trustee under the last will and testament of J.F. Powell, deceased, filed a petition in the chancery court of Yazoo county alleging that the estate of said J.F. Powell was delinquent in the payment of the annuity due under said last will and testament to John F. Powell and Virginia B. Powell, and that petitioner was advised and believed that said annuity was a charge on the corpus of the said estate, and praying for a construction of said last will and testament, and that petitioner be authorized to pay to the said annuitants the amount due them out of the income and corpus of the estate, if the court should determine that said annuity was a charge on the corpus of the estate. Upon the hearing of this petition, the court adjudged that the annuity provided in the said will was a charge and lien on the corpus, as well as the income, of the estate, and authorized and directed the trustee to pay to John F. Powell and Virginia B. Powell the amount due them under said last will at the rate of five thousand dollars per annum, first, out of the income of the said estate, and, if that was insufficient, then out of the corpus of the said estate.
No further action seems to have been taken or attempted under this decree, and on the 22d day of November, 1926, the said John F. Powell and Virginia B. Powell, his wife, filed their bill of complaint against H.H. Brickell, trustee of the estate of J.F. Powell, deceased, seeking to have the amount of the annuity due them fixed, and to have this arrears of annuity adjudged to be a charge on the corpus of said estate, and to have sold such part of the lands of the estate, all of which were therein particularly described, as might be necessary to pay this arrears of annuity due them. On the hearing of the cause, the court granted the decree prayed for, fixed the amount due as alleged in the bill of complaint, and ordered a sale of the lands, or so much thereof as might be necessary to pay and satisfy the amount of the annuity due the complainants, by the chancery clerk of Yazoo county, as commissioner of the court. From the decree so entered, an appeal was prosecuted to this court, and, in an opinion that is reported in 148 Miss. 491, 114 So. 328, the decree of the court below was affirmed. In that opinion the substance of the pleadings are fully set forth, and the pertinent paragraphs of the last will and testament of J.F. Powell, deceased, are copied, and therefore it will be unnecessary to repeat them here. In the opinion in Brickell v. Powell, supra, the questions decided were expressly limited to those presented by counsel for the respective parties, that is to say: (1) Whether or not the corpus of the estate could be subjected to the payment of the annuity; and (2) whether or not the said estate was liable for interest on the annuity in arrears.
Upon the remand of the cause to the court below, the then chancery clerk of Yazoo county, in accordance with the terms and provisions of the decree ordering the sale of so much of the lands of said estate as might be necessary to pay the annuity in arrears, advertised for sale that portion of said lands that is known as "Dixie Plantation." At this sale the appellant, D.A. Swayze, became the highest and best bidder for the said plantation, and it was struck off to him. At the next regular term of the chancery court the said commissioner reported his acts in making this sale, and prayed for a confirmation thereof. John F. Powell and Virginia B. Powell, the complainants in the original bill, and H.H. Brickell, testamentary trustee and defendant to the original bill, waived citation to answer said petition, and joined in the prayer for a confirmation of the sale. The purchaser, D.A. Swayze, appeared and interposed objections to the confirmation, assigning numerous grounds of objection which may be summarized as follows:
(1) That the title to the land which was purported to be conveyed by said proceedings and sale was defective for the reason that neither the remainderman, nor any one of the class who might be remainderman, nor any virtual representative of them, or their interest, were made parties to the proceedings, and consequently the decree under which the sale was made was void for the lack of the necessary parties;
(2) That the title to said land was defective for the reason that the sale was not made by the chancery clerk who was in office at the date of the decree which appointed the "chancery clerk of Yazoo county" as commissioner to make the sale, but was made by her successor in office and was therefore void; and
(3) That the title to the land so sold was defective because the will of J.F. Powell, deceased, did not make the annuity, to satisfy which the land was sold, a lien upon the lands of the estate, and therefore the sale was without warrant of law and void.
Upon the hearing of this petition for confirmation of the sale, the objections of the purchaser were overruled, and a decree was entered confirming the sale and directing the purchaser to pay to the commissioner the amount of his bid, and, from the decree so entered, this appeal was prosecuted.
The last will and testament of J.F. Powell, deceased, was previously considered by this court in the case of Brickell v. Lightcap, reported in 115 Miss. 417, 76 So. 489. From the report of that case, it appears that in the course of executing the will the executor exhibited a petition to the chancery court under sections 2075 and 2079, Code of 1906 (sections 1818 and 1822, Hemingway's 1927 Code), for the sale of certain lands of the estate for the purpose of paying the debts of J.F. Powell, deceased. This petition was filed upon the theory that it was to the best interest of all parties that the real estate be sold in preference to the personalty, as authorized by said section 2075, Code of 1906 (section 1818, Hemingway's 1927 Code), and only the trustees of the will were cited to answer the petition. Upon this petition a decree was entered authorizing and directing the executor to sell so much of the land of the estate as was necessary to pay the debts of the said deceased. The executor then sold to H.B. Lightcap certain plantations belonging to the estate, and the sales were duly confirmed by the court. Thereafter the trustees of the estate, and John F. and Virginia B. Powell, and other kindred of J.F. Powell, deceased, joined in a bill of complaint asking that the deeds of the executor attempting to convey the lands to Lightcap be canceled as a cloud upon their title, and that the possession be restored to the trustees in order that the trust might be continued, and the estate conserved for the contingent remaindermen; the attack upon the validity of these sales being based upon the charge that all necessary and proper parties were not before the court in the proceedings authorizing and directing such sales. On appeal from a decree upholding the validity of the sales to Lightcap, in passing upon the question as to whether or not the necessary and proper parties were before the court below, this court was called upon to construe section 2079 of the Code of 1906 (section 1822, Hemingway's Code of 1927), which reads as follows:
" Heirs or Devisees to be Summoned. — When a petition shall be filed to sell or lease land to pay debts or otherwise affecting the real estate of a deceased person, all parties interested shall be cited by summons or publication, which shall specify the time and place of hearing the petition; and if the petition be filed by a creditor or by a purchaser to correct a mistake in the description of the land, the executor or administrator shall be cited."
In determining who were necessary and proper parties to a proceeding to sell real estate to pay debts under the provisions of this statute that "all parties interested shall be cited by summons or publication," the court held that only persons in esse with a vested interest in the estate or remainder came within the classification of "parties interested," and that contingent remaindermen were not necessary and proper parties to such a proceeding to sell real estate. It was further held that, under the will whereby the testator devised the residue of his property in trust to pay a certain sum out of the rents and profits to his son and his wife for life, and provided that upon the death of the survivor the trust should terminate and the property should then vest in the children of his said son or the descendant of such children, and in the event of the death of said son without children, then upon the death of his said wife the property should vest in the testator's right heirs, the collateral kindred of the testator had only a contingent interest in the estate, and therefore were not necessary and proper parties to the proceeding. It was further held that, since the record disclosed that John F. Powell was then living and had no children, there were no persons in esse with a vested interest in the remainder, and since the annuitants were represented by their trustees, all necessary and proper parties were before the court.
The appellee contends that the decision in the case of Brickell v. Lightcap, supra, is controlling here upon the question of parties and has become a rule of property governing the title to the property, while the appellant contends that the case at bar is not ruled by the Lightcap case, for the reason that it is an ordinary suit in equity to fix and enforce a charge and lien on the lands of the estate and is governed by the general rules of equity with reference to proper and necessary parties, while the Lightcap case was a proceeding under the statute to sell lands to pay debts and was governed by the statute on the question of parties.
It is not clear that any distinction can be drawn between this proceeding to fix a charge and lien on the real estate for the purpose of discharging the accumulated annuity and a proceeding to sell real estate for the purpose of paying debts, in so far as the application of section 2079, Code of 1906 (section 1822, Hemingway's 1927 Code), is concerned, since the statute expressly provides that, when a petition shall be filed to sell or lease lands to pay debts "or otherwise affecting the real estate of a deceased person," all parties interested shall be cited by summons or publication. If it should be held, however, that this statute has no application to this proceeding, the general rule of equity relied upon that all persons who are materially interested, legally or equitably, in the subject-matter of a suit, should be made parties thereto, is no broader or more comprehensive than the provision of the statute that "all parties interested shall be cited," and, in the case of Brickell v. Lightcap, supra, it was held that the contingent remaindermen under this will were not within the classification of parties interested in the subject-matter of the suit, which was the sale of lands of the estate, and consequently that case is, in any event, controlling upon the question of whether or not the contingent remaindermen were necessary and proper parties. In that case the court further said that at that time John F. Powell still lived and was without children, and it could not then be known whether he would die without children or descendants of children, and, since there was no person in esse with a vested interest in the remainder there was no person within the designation of "parties interested," and consequently, no omission of necessary parties. In the case at bar, however, counsel for the appellant seems to contend that we should assume the existence of a child or children of John F. Powell and refuse to approve the confirmation of the sale because the record does not affirmatively show that there is no such child now living. If, in fact, such a child were now living, this child would have a vested interest in the remainder and would be a necessary party, and would not be bound by this proceeding, regardless of any recitals in the record in regard to the existence or nonexistence of such a child. The appellant has attacked the sale of this land and filed his objections to the confirmation thereof on the ground of the lack of necessary parties to the proceedings, but he has not therein charged, or even suggested, the existence of a child or children of John F. Powell, and, in the absence of an affirmative showing of the existence of some person who is a necessary party, and who has not been cited, the objections cannot prevail.
The appellee next contends that the sale was void for the reason that it was not made by the individual who was chancery clerk at the date of the decree ordering the sale and appointing the chancery clerk of Yazoo county as commissioner to sell the land, but was made by F.J. Love, who was chancery clerk of the county at the time of the sale. In support of this contention, it is argued that this court will take judicial knowledge of the fact that following the date of the decree appointing a commissioner an election was held in accordance with law and a different individual from the one who held the office when the decree was rendered was elected chancery clerk of the county, and that the person making the sale as clerk was therefore not the person who was clerk at the time the decree was rendered. In the case of Sanders v. State, 141 Miss. 289, 105 So. 523, it was held that this court will take judicial notice of the beginning and ending of the terms of public officers, but not of what persons occupy the different offices of the state at any given time, but, aside from any consideration of that fact, the decree did not appoint as commissioner the particular individual occupying the office of chancery clerk, but it appointed the chancery clerk of Yazoo county, and under this appointment the sale was properly made by the person who held the office of chancery clerk at the time the sale was made.
Finally, the appellant contends the corpus of the estate cannot be resorted to for the payment of the arrears of the annuity provided by the will. Counsel recognize the fact that, on the former appeal of this cause, 148 Miss. 491, 114 So. 328, it was expressly held that the annuity provided by this will is a charge and lien on the corpus of the estate, but they now contend that the necessary effect of the decision in the case of Brickell v. Lightcap, supra, was and is to the contrary, and that the Lightcap case is controlling upon this point. We do not so understand the language of the opinion in the Lightcap case. This question was not presented or considered in that case, and there is nothing in the language of that opinion which is decisive of the question now presented or which necessarily leads to the conclusion that the annuity is not a charge on the corpus of the estate. The question was fully considered in the case of Brickell v. Powell, 148 Miss. 491, 114 So. 328, and it was there held that, since the income was insufficient to pay the annuity provided by the will, resort could be had to the corpus of the estate for the purpose of satisfying the same, and that holding is decisive of the question that is presented on this appeal. The decree of the court below will therefore be affirmed.
Affirmed.