Smith v. Pattison

Tabbell, J.:

This is a proceeding in chancery to enforce a vendor’s lien on real estate. There was a demurrer to the bill by all the defendants, which was overruled, with leave to answer, but no answer was ever filed, except by the guardian of the minor defendants. The cause proceeded to judgment pro oonfesso, and final decree for the sale of the premises, when the defendants appealed.

It is set forth, in the bill that Thomas S. Jones was, in 1857, the possessor and owner of certain tracts of land therein described, which he sold to Sidney Smith for $19,500, to be paid in three equal annual installments, for which the vendee executed his promissory notes, and the vendor gave to the vendee a warranty deed of said lands. The first and second installments were paid, but the third is due and unpaid, except $2,000. The vendee occupied said lands until his death in 1859, and the widow and children continued in the occupation, and are in the undisturbed possession of the same. The deceased left, surviving him, his widow, Mrs. Julia L. Smith, Sidney Smith, Jr., and Mrs. Mary Rogers, wife of Enos Rogers, adult heirs, Fannie R. Smith, Oliver Webb Smith, Margaret Ellen Smith, John Alexander Smith and Belle Prince Smith, minor heirs, of whom Mrs. Julia L. Smith is mother and guardian. By his last will and testament the deceased had appointed his son, Sidney, and Alexander Pattison the executors, and Mrs. Julia L. Smith executrix of his estate. The bill avers that the executors have paid, on the third note $2,000, and that there is not sufficient personal property belonging to the estate to pay the balance, the only' security remaining to the vendor being the real estate for which the note now remaining due was given.

The bill was filed by Thomas L. Jones, the vendor, against the executors and executrix, and against the adult and minor heirs of the deceased. Process was duly served on all the adults, about which there is no dispute, but it is denied that the service upon the minors was sufficient. The bill was filed in 1867. Pending the suit, the complainant died, and Alexander Pattison was appointed administrator of his estate. A guardian ad litem, was appointed for the minors.

The first error assigned is, that the court erred in rendering a decree without proper service upon the minor defendants, who are, by the bill, Fannie E. Smith, Oliver Webb Smith, Margaret Ellen Smith, John Alexander Smith and Belle Prince Smith, of whom Mrs. Julia L. Smith, widow of the deceased, is mother and guardian. Under date of November 6, 1867, there appears the following return of service of subpoena: “Executed on Sidney Smith, executor, and Mrs. Julia L. Smith, executrix, etc., by offering to each a copy of this summons, which they each declined, and on Miss Fannie E. Smith, Margaret Ellen Smith, John Alexander and Belle Prince Smith by handing to each a copy of this summons. Oliver Webb Smith and Alexander Pattison not found.” December 28,1867, is a return of service of subpoena as follows: “Served personally on Oliver "Webb Smith by leaving a true copy of this summons with him, and on Mrs. Julia L. Smith, his mother and guardian, by copy left with her.”

. There was an affidavit and order for publication as to Oliver Webb Smith as a non-resident, made November 25, 1867, together with proof of publication. Prior to the foregoing return of service upon the minors, there had been proper service upon the adult defendants, and, besides, they all appeared in the cause by filing the demurrer. The service upon the minors seems to be fully in conformity, with the Code as construed in Mullins v. Sparks, 43 Miss. 129, and Johnson v. McCabe, 42 ib.

The second alleged error is, that the court rendered a final decree without referring the account between the parties to a master. Upon this point the record recites, in the final decree,that, “it being ascertained by a reference to the clerk and master of this court to make a calculation of the interest due on said note, that there is due the sum of $8,308 13, being the principal and interest on said note at six per cent, after deducting the credit which has been entered thereon,” etc., which was $2,000 paid by the executors in 1865. Not being contradicted by the record this recital is prima facie true, and if so, the second alleged error is not well taken. Freeman v. Ledbetter, 43 Miss. 165.

The third assignment of error is this, that “ the court erred in allowing Alexander Pattison, one of the defendants in the bill, to suggest the death of the complainant and have the suit revived in his own name as administrator of complainant.’ ’

Alexander Pattison was made defendant in the bill, but. he was subsequently appointed administrator of the com-' plainant, who deceased pending the suit, whereupon he came voluntarily into court, and suggesting the death, asked to have the action revived and continued in his name as such administrator, which was done.

This seems to be strictly according to the Code, art. 124, p. 456. See, also, Bowen v. Bonner, supra, p. 10.

- The fourth and last assignment of error alleges, that the court rendered judgment without requiring the complainant to prove his demand in court or before a master.

The bill was filed to enforce the payment of the amount due on a note or bill single, which was attached to and made an exhibit with the bill. There was also attached to the bill as an exhibit, the deed from the vendor to the vendee, deceased. A decree pro confesso was taken generally in the cause, and the only evidence of proof having been taken therein is contained in the final decree, wherein, it is recited, that “ this cause coming on for final hearing at, this term of the court upon the bill, exhibits, proof, pro confesso and answer of the. minors by their guardians, and the court having looked into the same and being satisfied that all the allegations are true,” etc., “ and the court being satisfied that there is a balance of purchase money due,” etc., “ and it being ascertained by a reference to clerk and master,’-’ etc., “ to make calculation of the interest due on said note,” etc. A prima facie case is at least made out which is not impeached by any other portion of the record.

Unable to see canse for reversal of the decree in this case, and satisfied that substantial justice has been done, we have reached the conclusion, that the decree must be affirmed, which is accordingly done.