Wilson v. McCorkle

Cook, J.,

delivered the opinion of the court.

This is an appeal from a decree of the chancery court of Sunflower county dismissing a bill of complaint. The appellants, Fuller Fox Wilson and his two minor brothers, filed a bill of complaint averring, in substance that, as heirs at law of their father, T. J. Wilson, deceased, they were the owners of a three-eighths interest in certain land therein described; that on the 25th day of November, 1912, the mother, three named uncles, and one cousin of appellants, by collusion with the defendant, George C. McCorkle, and with intent to defraud the appellants out of their interest in said land, filed an' ex parte petition in the chancery court of Bolivar county, seeking to have the disabilities of minority of the appellants partially removed so as to enable them to convey their interest in said land to the defendant; that in said petition it was alleged, among other things, that petitioners were the only kindred of the appellants within the third degree computed according to the civil law, whose residence was known to appellants or to the petitioners; that this averment was false and known to be false by each of the petitioners at the time said petition was filed by them; that at the time the petition was filed, in addition to the kindred joining therein, the appellants had a large number of other kindred within the third degree computed according to the civil law, whose place of residence was known to appellants and to petitioners, the names and post office addresses of these kindred being given; that the decree of the chancery cotírt of Bolivar county purporting to remove the disabilities of minority of appellants is null and void because it was obtained by fraudulent and false representations in the petition, and because the provisions of section 544 of the Code of 1906 under which the petition was filed were not complied with, and consequently the court which rendered the decree did not have jurisdiction of the subject-matter or of the parties; that the deed executed by the appellants to the defendant in pursuance of the authority attempted to be conferred by this void proceeding is null and void, but since it had been placed of record it cast a doubt, cloud, and suspicion on the title of appellants to their undivided'interest in said land. The bill then prayed for a cancellation of this deed, and for an accounting and a personal decree for the appellants’ pro rata share of the rents, issues, and profits arising out of said land since the defendant had been in possession thereof, and for a partition of the land.

The ’defendant demurred to the bill of complaint, and, the demurrer having been sustained, an appeal was prosecuted to this‘court, where the decree of the court below was reversed and the cause remanded with leave to answer; the opinion on the former appeal appearing in 91 So. 469. Thereafter the defendant filed his answer denying the allegations of the bill, and on the final hearing a decree was entered dismissing the bill of complaint.

The petition for the removal of the disability of minority of these minors contained the averment that the next of kin joining therein were all of their next of kin within the third degree, computed according' to the civil law, whose place of residence was known to the petitioners, while the decree based upon this petition expressly found that the petitioners were in fact all of such kindred. However, on the hearing of the case at bar testimony was offered which conclusively established the falsity of this averment of the petition and recital in the decree. The then minors testified that they had numerous other kindred within the prescribed degree whose places of residence were known to them at the time the petition was filed in 1912, giving the names and places of residence of such kindred; that prior to 1912 they had visited in the homes of some of these kindred, while some of them had visited in the home of their mother, and that the places of residence of these relatives were well known to them and to their mother. James Wilscm> their first cousin, who joined in the petition as next friend of the minors, testified that there were numerous kindred within the prescribed degree, whose places of residence were known to him, who did not join in the petition, the names and places of residence of these kindred in 1912 being stated by him. M. A. Wilson and W. F. Wilson, uncles of the minors, who joined in the petition, testified that the minors had numerous other kindred within the prescribed degree whose names and places of residence were known to the petitioners in the year 1912, when they signed the petition, some of these kindred who failed to join in the petition being uncles and aunts of the minors and brothers and sisters of the witnesses. They further testified that some of their brothers and sisters resided in the same community or county with them, and received their mail from the same post office as did these witnesses, while the others resided in adjoining or nearby counties, the places of residence of all of them, however, being well known to these petitioners at the time the petition was filed in the year 1912.

While the chancellor held that there was no fraud in the filing of the petition for the removal of the disabilities of minority of the minors, we do not understand that he found as a fact that all of the next of kin within the prescribed degree, whose places of residence 'were known to the petitioners, joined in the petition. If such had been the finding of the chancellor, it could not be upheld, since the evidence conclusively establishes, the contrary. The contention is made that the chancellor was warranted in accepting as true the averments of the sworn petition of 1912, rather than the contrary testimony of the petitioners as given on the trial of this cause. We do not think so. The. evidence establishes beyond all controversy that there were uncles and aunts of the minors living in 1912, some of whom lived in the same community with some of the petitioners. That any of the petitioners were ignorant of the names and places of residence of their own brothers and sisters who resided in the same community with them is contrary to all human experience, and the testimony of the two uncles of the minors that, when they signed the petition in 1912, they knew the places of residence of their brothers and sisters who resided in the same county, as well as those residing in adjoining or nearby counties, must he accepted as true. In addition we have the testimony of the three minors that they knew the places of residence of other kindred who did not join in the petition, and altogether the testimony conclusively establishes that the averment in the petition of 1912 of this necessary jurisdictional fact, upon the truth of which the chancellor then assumed jurisdiction, was false in fact.

In the case of Hardy v. Pepper, 128 Miss. 27, 90 So. 181, it was held that — “Under section 545 [Code of 1906] in an ex parte proceeding it is necessary that all kindred within the third degree known to the minor or to his copetitioners shall unite in the application.”

The joining of all such kindred is therefore necessary to confer jurisdiction on the chancellor under this section, and since the chancellor was induced to assume jurisdiction by the false averments of a petition, known to the petitioners to. he false when filed, we think this at least, constituted legal or constructive fraud on the jurisdiction of the court. Prom the false averments of the petition on that point, it would appear that the petitioners understood that all the kindred within the third degree known to the minors or their copetitioners must unite in the application in order to confer jurisdiction on the chancellor, and that this false averment was made for the purpose of misleading or deceiving the chancellor, but, whatsoever may have been the purpose, this false averment of a necessary jurisdictional fact, knowingly made, constituted such legal or constructible fraud as rendered the decree based upon this false petition absolutely null and void.

The decree purporting to remove the disability of minority of these minors being, void, they are entitled to have a proper accounting, and a partition of the land in controversy, and the decree of the court below will therefore be reversed, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.