Temples v. Cain ( 1882 )

Chalmers, J.,

delivered the opinion of the court.

Two questions are presented by the record.

1.. Had our Probate Court, under the Constitution of 1832, jurisdiction to appoint an administrator of a decedent who left no personal estate, but died the owner of realty, leaving debts, for the payment of which a sale of the realty was necessary?

2. Can the heirs of a decedent, whdse land has been sold by decree of the Probate Court, bring ejectment to recover it from the administrator who has directly or indirectly purchased at his wn sale, without a precedent procéeding to vacate the decree of the court of probates confirming the sale?

It was said arguendo in Partee v. Kortrecht, 54 Miss. 68, 73, that under the Code of 1857 (which is the Code governing the present case), letters of administration could not be granted upon the estate of a non-resident decedent, who left land but no personalty in this State, though the rule was different under the Code of 1871, under which this case originated. Whether the statement was correct or not as to the case of a non-resident intestate, we think it clear that the Probate Court had jurisdiction to grant administration upon the estate of a resident of the State, who left realty only, where, as in this instance, it was made to appear that there were outstanding debts for the payment of which a sale of the realty was essential.

Lands are made assets for the payment of the debts of a de-ceclent in tbe event of a failure of personalty, and the Probate Court was the tribunal for the ascertainment of the deficiency and for the condemnation of the lands. That court therefore must have had jurisdiction to institute the inquiry necessary to ascertain the fact and, as preliminary thereto, to open the administration. If the result showed that there was no necessity for the condemnation of realty, the title thereto was unaffected and remained in the heir. If the court adjudged that the land should be sold, it was thereby converted into assets and the power to deal with it became plenary. It would be dwarfing and belittling the jurisdiction of a constitutional tribunal to hold .that its power to do this depended upon the fact of whether the deceased land-owner had or had not died the owner also of personalty to the extent of a cow or a horse, or a worthless chose in action.

Its power to sell the land depending upon its own adjudication of whether it was necessary to do so, it must have had the right to institute proper proceedings to determine this question, and, as incidental and essential to such inquiry, to appoint an administrator.

Upon the second question presented by the record we are of opinion that the heirs could not maintain ejectment for the recovery of the land of their ancestor upon the ground that the purchase at the administrator’s sale, though in the name of another, was really and conclusively made for his benefit. The general doctrine is well settled that in the absence of fraud the judgment or decree of a court of competent jurisdiction cannot be collaterally impeached, as by seeking to wrest from a purchaser the fruits of such judgment, but that the decree or judgment must be directly attacked and vacated as if by appeal, bill of review, or other proceeding, which has for its special object the annulment of the judgment itself rather than a deprivation of its fruits.

The confirmation by the Probate Court of the sale made by the administrator in this case vested the legal title to the land in controversy in the purchaser, and that title passed by the subsequent deed of the purchaser to the administrator. If we concede that the arrangement was collusive, and that the administrator was the real purchaser, the sale was not void, but voidable only at the election of the heirs, as this court has repeatedly announced ; and it is only when legal proceedings, which culminate in the acquisition of an apparent legal title, are absolutely void that they can be ignored and disregarded by those who desire to defeat their effect. Cocke v. Simmons, 57 Miss. 183; Sadler v. Prairie Lodge, 59 Miss. 572 ; Bland v. Muncaster, 24 Miss. 62 ; Scott v. Freeland, 7 Smed. &. M. 409 ; Jones v. Smith, 33 Miss. 215.

It is the right of the cestuis que trust, when their trustee has purchased the trust property, either to claim its proceeds or the property itself; but this right is coupled with the obligation of acting promptly, and o faccounting for anything that they may have received, and when the proceeds have been knowingly received it cuts off the right of claiming the thing sold. A court of equity is the more appropriate forum for the adjudication of such rights as these, and until the decree under which the sale 'took place, or was confirmed, has been vacated, must be the exclusive one.

We perceive no reason why in thaf court the proceeding for the recovery of the property and the adjustment of the equities of the parties may not be combined with one for vacating the decree of sale -or of co'iffirmation; but this cannot be.done in a court of law. It follows from these views that the court properly excluded in this, action the proffered testimony to establish that the administrator was the purchaser of the land sued for at his own sale under the decree of the Probate Court.

Affirmed.