Keel v. Jones , 93 Miss. 244 ( 1908 )

Calhoon, J.,

delivered the opinion of the court.

This bill was filed by the five children of W. S. Keel, who, together with their mother, were the heirs at law of the deceased, and these children make as defendants their mother, Maria A. Keel, Joseph T. Jones, and the Gulf Coast Lumber Company; the last two being remote purchasers of land sold pursuant to an order of the chancery court for parteition. The bill was filed for the purpose of cancelling the deeds to the property subsequent to the sale as the five-sixths interest claimed by complainants, and for partition of the property. The bill makes an exhibit of all the proceedings in the chancery court ordering the original sale for partition. This exhibit shows that the three adult complain" .ants in the present bill at the time of the sale by the commissioner under decree, were adults, and that in fact, they actively participated in the proceedings vesting title under that decree in Mrs. Keel. It shows, also, that they executed receipts to their mother for their distributive shares of the proceeds of the sale. The bill, in the original proceeding, was filed in the name of the two minors, by their mother, Maria A. Keel, as their next friend and the three then adults were parties defendant, who appeared, confessing the bill for partition, and consenting to the sale as prayed, and there are as has been said, their receipts for their respective shares of the purchase money all of record in that proceeding. There was a demurrer filed to this bill by the defendants. The court sustained the demrurer as to those wlm were adults at the time of the decree in the original cause, and overruled the demurrer as to the two who were minors at the date of that original decree. An appeal is taken in the present litigation by the three then adults from the action of the court in sustaining the demurrer as to them.

We think that the action of the court in sustaining the demurrer as to the appellants was correct. It is a matter of estoppel as to them. It cannot be tolerated that fifteen or sixteen years after the decree, and after distribution to them, they should be heard to assert, as they do, that, the whole proceeding being void, they could not be bound. Any distinction between void and voidable cannot be entertained in such a case. We do not now decide whether that original decree was valid, or absolutely void, or voidable. We simply held that they are estopped by their action in the original proceedings. If it be granted that, the .decree in tire original proceeding was void as to all the defendant heirs, there would be no difference under the facts of this case. It has been held repeatedly in Mississippi, and it is settled law here that the acceptance of the distributive share of the-purchase money realized on a sale for pártition under a void decree estops. Handy v. Noonan, 51 Miss. 166; Young v. Walker, 70 Miss. 813, especially pages 818-820, 12 South. 546, 901; Lee v. Gardiner, 26 Miss. 521; Kempe v. Pintard, 32 Miss. 324; Willie v. Brooks, 45 Miss. 542, especially bottom of page 547; Gaines v. Kennedy, 53 Miss. 103-109; Shivers v. Simmons, 54 Miss. 520, 28 Am. Rep. 372; Corwin v. Shoup, 76 Ill. 246; Webster v. Bebinger, 70 Ind. 9. This course of decision is in no degree affected by Moore v. Sommerville, 80 Miss. 323, 31 South. 793, 32 South. 294, which case simply holds that a decree of partition which is void as to one is void as to all, but in a case where the proceeds of the sale have not been distributed, as will be seen in the opinion in Moore v. Sommerville on page 332 of 80 Miss., page 295 of 32 South., and there was no question whatever of estoppel in that case.

The decree of the court below, sustaining the demurrer to the-bill of appellants, and dismissing the original bill as to them, is. affirmed.

Affirmed.