Simmons v. Holmes , 49 Miss. 134 ( 1873 )

Tabbell, J.,

delivered the opinion of the court:

The real question, as is supposed, upon which a writ of 'error was prosecuted, in this case, arises upon the right of a County Superintendent of Education, under our present school system, to enforce collection of a note given for the purchase of a “sixteenth section,” and made payable to the President of a Board of Trustees under a former mode of conducting our educational affairs.

It is contended by counsel, that the “ sixteenth section,” and the funds arising therefrom, are vested in the townships, and cannot be diverted without a violation of constitutional guarantees, and hence, it is urged, that the collection of the debts of the character of that presented herein, involves the diversion of the funds, thence arising, from townships.

The right of the State, to manage these township lands and funds, by the agencies prescribed by the legislature, is not now an open question in Mississippi.

This right has been exercised ever since the organization of the State government. Acts, 1818,1824,1833, 1839, 1842, 1S46, 1848. • Hutch., 210, 213, 222, 230, 238, 243, 248, 260; Const, of Miss., of 1817, Art. 6, Sec. 20; Laws of Congress, 1852; Sec. 1, in Code of 1857, Appendix; Acts of 1870.

An inspection of these statutes exhibits, numerous changes in these agencies, and a very great diversity of what may be not improperly denominated, experiments, as, at first, this management was confided to the justice of the county courts; then to township trustees; afterwards, to board of police, in certain cases ; from the latter, it was changed to probate judges, in some instances. In 1846, there were county commissioners, and in 1848, this control was given to county superintendents and trustees, in some of the larger counties, including the county of Holmes. And now. under our present constitution and legislation, we have a system, with officials, differing in some respects, from all prior methods.

These repeated changes are given only to show that the State has, from the outset, in 1818, exercised, the right to designate the agents for the care of this national donation. And this right, it is believed, has. never been questioned. In Morton v. Grenada Academy, (8 S. & M., 773,) the right of the legislature, by special legislation, to substitute another set of trustees in place of those appointed under the general law, was left undecided, while the general right of control by the State was affirmed.

However, the argument of counsel for the appellants, is, not that this general control is not in the State, but that, under the law of 1870, collection involves distribution and diversion, which, it is insisted, ought to be decided now.

It is not conceded that this position is tenable. The parties made defendants by the bill of the superintendent, are not residents of the particular townships interested, nor are the inhabitants of that township interposing their claim to this money. We are of the opinion, therefore, that the question 'of distribution or diversion is not involved in this issue. Whether, by the acts of Congress, title to the sixteenth sections, passed to the townships or to' the State, or, whether the townships have vested rights in these lands and their proceeds, should be presented in a direct proceeding for that purpose, by the proper parties. In the present proceeding, it is sufficient to pass upon the right of the county superintendent to collect the debt in controversy. For this purpose, we hold the county superintendents, under the constitution and laws of 1870, to. be the legitimate successors of the presidents of the boards of trustees of the superceeded systems.

The minor questions in the case are presented by the demurrer to the bill; want of equity; remedy at haw and not in equity; no jurisdiction in equity; and the bar of the statute of limitations. The demurrer was followed by a motion to dissolve the injunction granted upon the bill, which motion was denied ; thereupon the demurrer was overruled, and the defendants filed their answer. This leads to an analysis of the facts presented by the record.

The complainant in the original bill is County Superintendent of Public Education of the county of Holmes. In 1862, Jas. S. Simmons and S. B. Simmons gave their joint and several notes for the' sum of $4911.14, payable to Elijah Russell, President of the Board of Trustees of section 16, township 14, range 2, west, or his successor in office, for the purchase of the lands described in the note. These, or certain other lands, which are not clearly defined in the bill, were sold to one Skidmore, for k large sum, by Simmons, who retained a vendor’s lien. Subsequently,'Skidmore and Jas. S. and S. B. Simmons died. S. B. Simmons left a will, wherein he named Isaiah M. Simmons the executor of his estate. The latter proceeded, in chancery, to enforce the vendor’s lien of his testator upon the lands sold by him to Skidmore. This proceeding resulted in a sale of the lands to the heirs, legatees and devisees of S. B. Simmons, deceased, by arrangement between them and the executor, who conducted both the sale and the purchase, the heirs, etc., taking an interest in the purchase in proportion to their rights under the will. Thereupon, these parties, as co-tenants, instituted an action to sell these lands for division. Pending this last proceeding, the complainant, Holmes, as superintendent, etc., filed his bill of complaint against Isaiah M. Simmons, executor, etc., and against the heirs, etc., Of S..B. Simmons, deceased, some of whom are minors, to enjoin the sale and division about to take place in the action above mentioned; He avers fraud and collusion between the executor and heirs, etc., to defeat the collection of the debt due the school fund, and states that the executor gave no security as such, and that he exacted no refunding bond of the héífS, devisees, etc., to whom he had made distribution ; that the executor and heirs are insolvent; that the executor probated the claim in controversy against the insolvent estate of Jas. S. Simmons, deceased, but did not probate it against the solvent estate of S. B. Simmons, deceased; that Isaiah M. Simmons, the executor named, succeeded Russell as president of the board of trustees, and had in his actual possession, while serving in both capacities of executor and of trustee, etc., the claim in controversy; that the executor is the son-in-law of S. B. Simmons, deceased; that no other property of the estate of the latter remains, out of which to make this debt, save the lands mentioned as about tobe sold for division, and involved in this controversy; and, which is material and important, that all other debts against the estate, save the one in controversy, have been paid.

The bill prays for an injunction to enjoin the sale of the lands for division; that the executor account; for discovery; for payment, or sale of the lands involved to that end ; and for such other relief, etc.

The answer sets up the plea of non est factum as to the signature of S: B. Simmons, deceased, and this plea is sworn to by Isaiah M. Simmons, one of the defendants, and executor, etc. Possession of the note while both executor, etc., and president of the board of trustees, is denied by the defendant, Isaiah M. Simmons. The answer admits some of the heirs, etc., to whom distribution had been made, to be insolvent, and that no refunding bond had been required of any of them, and that the executor had rendered no account because none had been asked of him by those interested, they having confidence in him without accounting. Fraud and collusion are denied, and the answer is made, a cross bill, with prayer for discovery.

The answer of the superintendent to the cross-bill, repeats the averments of the bill, and adds, that the records of the board of trustees are in the hands of the executor, and that such records are supposed to contain matters important to this issue.

Testimony was taken emphatically, overthrowing the plea of non mt factum, and it would seem that the executor must have known the • signature of his testator to have been genuine when he made that defense. And a receipt of Isaiah M. Simmons was presented in evidence, showing him in. the actual possession of the note, in 1866, when, if the facts are correctly understood, he was both executor, etc., and president of the school board. Other testimony was taken, pertinent to the issues, not necessary to be stated here.

Upon the pleadings, exhibits and testimony, another motion to dissolve the injunction was made, which motion was overruled, and thereupon an appeal was taken to this court. Here a single error is assigned, based upon the action of the Chancellor in refusing to dissolve the injunction. Upon the right of the Superintendent of Education to enforce the payment of the debt in litigation herein, and of the rights-of the township to the funds arising therefrom, the arguments of counsel have been most exhaustive, but nothing need be added to what has already been said on this point.

As to the bar of the statute of limitations, the facts presented in the record justify the action of the Chancellor in refusing to dissolve the injunction on this ground, (Perry v. West, 40 Miss., 233; 1 How., 215; 3 ib., 216, 301; 4 ib., 242; 5 S. & M., 651; 2 ib., 453; 3 ib., 473; 8 ib., 552; 37 Miss., 110; 27 ib., 643) whether by reason of knowledge of the existence of the claim through its possession by the executor, or, upon the theory that it was fraudulently withheld from registration by him.

With reference to the remaining propositions, upon which is propounded the question of equity jurisdiction, it is contended that the case at bar falls within the general rule; that equity will not, in the first instance, take jurisdiction of a purely legal claim, and that, in such a case, judgment must be had, with execution and a return of nulla tona before chancery will interfere in aid of the creditor; or, in other words, that in the enforcement of a purely legal claim, the debtor must be prosecuted to insolvency before the creditor can resort to a court of equity to enforce his claim. The class of cases referred to are familiar and unquestioned, but it is believed the jurisdiction of chancery over the case presented, ought to be sustained on one or all of the following grounds:

It is not clear, from the bill, whether this is a proceeding to enforce the vendor’s lien. If it is, the jurisdiction of equity will, of course, be conceded. Nevertheless, the authorities on this subject are appended: 2 Story, Eq. Jur., § 1217; id., § 789 ; Payne v. Harrell, 40 Miss., 498; 1 Vern., 399; 3 Atk., 200; 9. John. Ch. R., 145; 11 S. &. M., 366 ; 31 Miss., 458; 34 id., 363; 40 ib., 519; 1 Tru. Ch., 299; 1 S. & M. Ch., 17, 623; 4 John. Ch., 671; 2 S. & M., 697; 5 ib., 662; 6 John. Ch., 77; 2 Story Eq. Jur., § 1217; ib., 960, 905, 908, 953, 954, 406, 959; Code of 1871, §§ 974, 979.

The true basis of equity jurisdiction in this- case, probably, rests in the right of a creditor to follow assets of a testator into the hands of distributees who have received property from an executor by distribution under a will, prior to the discharge of all the debts against the estate. 2 Story Eq. Jur., § 1251. Or, in the case at bar, treating the defendants as purchasers purely, equity jurisdiction may, perhaps, be predicated upon the theory, as charged in the bill, that they were colluding with the executor to defeat the claim and its enforcement, lb., §§ 1257, 1258. For further grounds, see ib., §§ 90, 91,92. Equity jurisdiction is ample, independent of the question of vendor’s lien, referred to only because the bill is not clearly understood. Jurisdiction being established,' the right to protect and preserve property by injunction follows as a part of the remedial power of chancery, and this protective power is equally inherent upon whatever ground jurisdiction is obtained. Vide authorities above cited.

Upon the record as now interpreted, the Chancellor was proceeding according to the principles of equity and justice.

The decree refusing to dissolve the injunction is affirmed, and the cause remanded for further proceedings.