Hamilton v. Lockhart , 41 Miss. 460 ( 1867 )

Ellett, J.,

delivered the opinion of the court.

The administrators of <T. B. Cobb, under an order of the Probate Court of Lowndes county, sold a certain tract of land, which was purchased by the defendant Lockhart. The purchase-money was secured by bills of exchange, accepted by the appellants,, as sureties for the purchaser, and they allege that they have paid the bills ; and they bring this suit to be subrogated to the lien on the property, given by statute to the administrators, as a security for the purchase-money. The bill also charges fraudulent conveyances to have been made of the property by Lockhart, in favor of his wife, and his father-in-law, Moody.

The bill was dismissed as to Lockhart, and his wife, and Moody, on their demurrer.

One of the numerous grounds of demurrer assigned, makes the point, that the order of sale was void, for the reason that the heirs of Cobb were not legally notified of the application by the administrators for that purpose. If this be true, then there could be no implied statutory lien for the purchase-money, and no right of the administrators to which the complainants can be subrogated.

The proceedings on the petition for the order of sale are set out in general -terms, and a full copy of the record is referred to as an exhibit, and made part of the bill.

The petition for the order of sale alleges that Thomas W. Cobb, George Cobb, and Joseph Cobb, minor heirs of Joseph B. Cobb, reside with their mother in the county of Lowndes, in this State. On this petition, an order was made directing a citation to issue to the said Thomas W. Cobb, and other heirs named, and that publication be made as to Julia A. Redwood and her husband, who resided in Alabama. The citation was returned “ executed on all but T. W. Cobb, he not found.” On the retirni day of the citation, the court appointed a guardian iad litem for said Thomas W. Cobb, George and Joseph Cobb, but no answer was filed by said guardian for the infants. Proof of publication was made as to Redwood and wife, which was also addressed “ to all other persons interested in said estate.” The final decree recites that E. D. Cobb, widow, and George and Joseph Cobb, minor heirs, have been personally, and Redwood and wife and Thomas W. Cobb, who are absent from the State, have by due and legal publication and notice, been cited, &c.

It is clear, from the whole record, that Thomas W. Cobb, a minor heir, was a resident of the county of Lowndes, and that he had no notice of the proceeding to subject him to the jurisdiction of the court. The order of sale was therefore void as to him, and being void as to him, it was void as to all the parties.

The sale was also void because the court did not require the bond prescribed by the act of Nov. 30, 1858. Pamphlet, 187. See the following decisions upon a kindred statute: Currie v. Stewart, 26 Miss. 646; Cohea v. The State, 34 Miss. 179; Washington v. McCaughan, 34 Miss. 304.

It.is objected, on the^other hand, that the bill charges fraud in the conveyances by Lockhart to his wife and father-in-law, and that a demurrer cannot be sustained to a bill charging fraud.

The rule invoked is subject to this qualification. If the fraud is well charged, so as to make a case for equitable relief, the bill cannot be dismissed on a. demurrer. But if the fraud charged is not of such a character, or has not been committed under such circumstances as to entitle the complainant to equitable relief in regard to it, then a demurrer is proper. In this case there is no sufficient ground for any relief against Lockhart, and therefore the averment of fraud in the conveyances, made by him are immaterial, and furnish no foundation for relief against his vendees.

Let the decree be affirmed.