Cocke v. Foote , 49 Miss. 181 ( 1873 )

Tabberr, J.,

delivered the opinion .of the oourt;

C. S. Skidmore died testate in 1862, having, by his will, appointed John W. Griffin, and --- Carraway his executors. In October of that year, letters testamentary were granted by the probate court of Madison county, where the will was probated, to John W. Griffin, as executor, who qualified as such. In September, 1866, Benjamin S. Kicks recovered judgment, in the circuit court of Madison county, against the said John W. Griffin, as executor, etc., for upwards of $16,000.00. The letters testamentary of Griffin were revoked in November, 1866, when he ceased to be executor, etc. Administration was granted-to H. S. Fopte, jr., in December thereafter, and in May, 1867, the estate was declared insolvent. Settlement proceeded accordingly, and Foote was discharged from his administration in March, 1869. In. April, 1871, while there was no representative of the deceased, Kicks sued out an alias' fieri facias, to enforce his judgment, directed to the sheriff of Holmes county, commanding him “ of the goods and chattels, rights and credits of O. S. Skidmore, deceased,, in the hands of JohnW. Griffin, administrator, andtothers, to cause to be made the said sum” of $16,000.00, £i to satisfy said judgment.” This execution coming to the hands of the sheriff of Holmes county, was levied upon several lots of land) in that county, as the property of C. S. Skidmore, deceased, in the hands of his executor, unadministered. .These lands were sold by the sheriff, in August, 1871, to John G. Cocke and Wellington Jenkins, plaintiffs in error, for the sum of $80.00, that being the highest sum bid, and at the same time executed to them a deed thereof. H. S. Foote, jr., was appointed administrator, de lonis non, etc., of C. S. Skidmore, deceased, in October, 1871, and upon his motion the above execution was quashed at its return term by the proper court. The land above mentioned, and in controversy, is a part of a sixteenth section of school lands,' and held, by lease, for ninety-nine years, the estimated value being about $3,000, while the indebtedness of the estate of Skidmore exceeds that sum and all the assets of the estate by many thousands. Upon this state of facts H. S. Foote, jr., administrator, etc., filed his bill of complaint in the chancery court of Holmes county, praying that the deed of the sheriff to Cocke & Jenkins, be canceled, and the land restored to him, to sell.for the benefit of creditors of the estate. The sheriff’s deed is claimed to be a cloud upon the title, impairing its value for sale ; and it is averred that this land was overlooked by, and unknown to the administrator, until subsequent to the sale by the sheriff, as above set forth.

Cocke, Jenkins & Ricks were made defendants. Neither bad faith nor knowledge of the facts above stated, are charged upon these parties. There was a demurrer, stating for cause, that the fi. fa. was an alias,'issued out of the proper court, upon a judgment against the executor named in the writ; that there was no offer to return the money paid by the purchasers; that the defendants had no notice of the motion to quash the writ of execution; that the writ was not void; and that the land was only lease-held. This demurrer was overruled, and the defendants answered. No issue is made by the answer, the allegations of the bill being substantially admitted; but it is stated, as a reason why the land brought no more than $80.00, that a suit was pending to enforce a lien for the purchase money, or price agreed to be paid for the lease, secured by note, to the proper school officers, who made the sale. Ricks did not appear, and a pro eonfesso was taken as to him. A stipulation, signed by the respective counsel, waives proofs and agrees on the facts as above. The decree of the Chancellor was in accordance with the prayer of the bill, and the defendants, Oocke & Jenkins, appeal to this court. In brief, there was judgment against Griffin, executor. He resigned his executorship, and Foote was appointed administrator, etc., when the estate was declared insolvent. Foote was discharged, after having administered, as was supposed, upon the entire estate. In this condition of the estate, Ricks caused execution to be issued on his judgment, requiring the sheriff to sell property in the hands of Griffin, executor, etc. Upon this execution, leasehold property claimed to be worth several thousand dollars, was sold for $80.00. The complainant avers that this property was unknown to him until the sale by the sheriff to Oocke & Jenkins,

The following are believed to be correct legal propositions, and that by them the case under consideration must be determined:

1. This property belonged to the administrator. The declaration of insolvency passed title absolutely. Code of 1871, §§ 1134, 1158; 2 How., 601.

2.' It mattered not that it had not been inventoried. If unknown or accidentally omitted, it was the duty of the administrator to return it when discovered, and of thé court to order it to be included, when brought to its knowledge. ■Code of 1871, § 1133.

3. So long as there was property unadministered, Foote was probably not legally discharged from further administering, though this view is somewhat speculative in the absence of all the facts, and not essential.

4. The judgment against Griffin should have been revived against his successor. Code of 1871, § 1182.

5. The purchasers acquired only the interest of Griffin, which was nothing. They were chargeable with at least constructive notice of the condition of the records in Madison county.

6. Title was in Foote, or, in abeyance.

7. The facts are exceptional, and the cases cited of title passing in virtue of sales under voidable executions, are not considered analogous. We are aware of no case like the one at bar. The cases cited are of judgments against the deceased in his life time, with executions bearing teste after his death. Hence the distinction. 7 How., 224; ib., 256 ; 9 S. & M., 216; 35 Miss., 63, and cases cited therein; 6 How., 352.

An examination of the case of Parker, administrator, v. Whiting’s administrator, 6 How., 352, shows it to have been in many respects like the one under consideration. There was judgment, in 1840, against an administrator, execution against the party defendant in' the judgment, and levy on property in his hands, but no sale took place ; an alias execution was issued returnable to May term of the proper court, 1841; this execution was superceded on the ground that, in March preceding (1841), the estate of which the. defendant in the execution ,was the representative, had been declared insolvent. The opinion of the court in that case was delivered by Ch. J. Sharkey, and the reasoning tends strongly, if not conclusively, to uphold the decree in the case at bar,

But it is provided by §1163, Code of 1871, incorporated from prior statutes, that, “ no suit or action which may be pending against an executor or administrator at the time the estate is reported insolvent, shall, on that account, abate, but maybe prosecuted to final judgment; and the judgment shall constitute a claim against the estate, though not registered as other claims, but shall have no priority over general-creditors,” etc. In the case now quoted from it is said, “ there is no provision as to judgments recorded upon the report of insolvency, and yet it must be manifest that such a case falls within the spirit of the statute so as to prevent the plaintiff from making his judgment effectual, by having it executed after a report of insolvency. To prosecute his execution is in effect to prosecute a suit. If, then, an estate is reported insolvent after judgment and before execution executed, it Í3 competent for the court from which the execution emanated to stay the execution in the same manner that it would stay an execution in a suit brought before, and judgment recovered, after insolvency under the last mentioned act. The judgment lien is then held in abeyance, or must give way to the general, and equal liens of all the creditors ; for they all become equally entitled to their respective shares of the proceeds the moment an estate is reported insolvent.” In the case cited, the execution was against the administrator, who was defendant in the judgment, and it was levied upon property in his hands in fact, but there Was no sale. While in the case at bar, the defendant in the judgment had ceased to be executor when execution was issued against him, and executed without revival against the successor in the administration. There is also this further- consideration in this case, that the purchasers at sheriffs sale are fairly chargeable with notice, by construction, of the condition of the records in Madison county.

We are' of the opinion that the justice and equity of this case are with the complainant, and we so decide, as we think, ex equo ei bono, upon the case made by the record.

Decree affirmed*