Opinion
No. 26989.
October 15, 1928. Suggestion of Error Overruled February 25, 1929.
1. INFANTS. Where petition to remove disability of minority did not show minor resided in county, court had no jurisdiction and decree was void ( Hemingway's Code 1917, sections 300, 301).
Where petition and record of proceedings for removal of disability of minority did not show that minor was resident of county as required by Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), court had no jurisdiction, and decree removing disability was void.
2. INFANTS. Petition to remove disability of minority showing property inherited was in county did not show minor resided in county, in view of other statements ( Hemingway's Code 1917, sections 300, 301).
Petition for removal of disability of minority under Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), showing that property inherited by minor and others was in H. county, did not show that minor was resident of H. county, in view of statement in petition that none of parties owning lands lived in state.
3. INFANTS. Minor not residing in county cannot, by appearance by petition to remove disability of minority, confer jurisdiction on court ( Hemingway's Code 1917, sections 300, 301).
Minor not within class named in Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), relating to removing disability of minority of minors residing in county, cannot by his appearance by petition confer jurisdiction on court of subject-matter of which it did not have jurisdiction, and subject-matter conferred by statutes on chancery court is that of removal of disability of minority of minors residing in county.
4. INFANTS. No presumption is raised in favor of chancery court's jurisdiction in removing disability of minority ( Hemingway's Code 1917, sections 300, 301).
No presumption is raised in favor of jurisdiction of chancery court in matter of removal of disability of minority under Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), since such jurisdiction is limited and restricted, and allegations in petition must be basis of jurisdiction of chancery court to act in such case.
5. COURTS. Parties cannot confer jurisdiction of subject-matter by consent.
Parties cannot confer jurisdictional power on a court without it simply by consent.
6. COURTS. Where facts showing jurisdiction of court of limited jurisdiction do not appear of record, its judgments are void.
No presumption is indulged in favor of a court of special and limited jurisdiction, and where jurisdictional facts do not appear of record, its judgments are void.
7. EVIDENCE. Where petition to remove disability of minority did not show petitioner resided in county, court could not take judicial notice that petitioner was resident because guardianship proceedings were pending ( Hemingway's Code 1917, sections 300, 301; Hemingway's Code 1927, section 2108).
Where petition for removal of disability of minority under Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), did not show that minor was resident of county, court could not take judicial notice of fact that minor was resident of county because guardianship proceedings were pending in court at time, since it was necessary that petition show such residence in order to confer power on court to act, and also since Hemingway's Code 1927, section 2108, confers jurisdiction of nonresident guardians and nonresident wards where ward has property situated in county of state.
8. INFANTS. Where petition to remove disability of minority generally did not show minor resided in county, court did not have jurisdiction under statute relating to removing disability of minority of nonresident minors as to lands in county ( Hemingway's Code 1917, sections 300, 301; Laws 1922, chapter 226).
Where petition for removal of disability of minority generally, under Hemingway's Code 1917, sections 300, 301 (Code 1906, sections 543, 544), did not show minor was resident of county, court did not have jurisdiction under Laws 1922, chapter 226, providing for removal of minority of nonresident minors as to lands in county, since proceedings were not instituted under latter statute and decree took no notice of lands owned by minor and there was no effort to confer jurisdiction upon court for that purpose.
9. INFANTS. Minor's suit to cancel deed was not without equity because she alleged she did not receive purchase money and afterwards amended and tendered purchase price received.
Minor's suit to cancel deed was not without equity because in original pleadings minor alleged that she had never received any of purchase money, and after finding that purchaser was able to show that she had received purchase money, minor thereupon amended and tendered purchase price received by her to purchaser.
10. INFANTS. Where minor tendered back purchase price, case stood as though she had not as minor executed deed.
Where minor tendered back purchase price received for her interest in land, case stood as though she had not as minor executed deed and status of parties was restored.
11. INFANTS. Minor was not bound by act in executing deed nor by void decree to remove disability, but could disaffirm deed and recover property.
Minor was not bound by her act in executing deed nor by void decree to remove her disability of minority, but she could disaffirm deed while under disability of minority and recover her property.
ON SUGGESTION OF ERROR.12. JUDGMENTS. Void decree, removing disability of minority, was nullity, and constituted no defense in minor's action to disaffirm action in signing deed.
Void decree, removing disability of minority, was a nullity, and it had no effect whatever, and afforded no protection to one purchasing property from minor, and constituted no defense to action to disaffirm action in signing deed while plaintiff was a minor.
13. APPEAL AND ERROR. Supreme court could base judgment on fact making decree defendant relied on void, though question was not raised by bill in lower court.
In action to disaffirm deed executed while plaintiff was a minor, supreme court could base its judgment on fact that decree removing disability of minority, on which defendant relied, was void because minor was not resident of county in which decree was rendered, and thus no defense to action, even though question was not raised by bill in lower court.
14. JUDGMENT. No defense could be predicated on deed executed during minority, where deed rested on efficacy of void decree removing disability.
No defense could be predicated on deed executed during minority, where deed rested on efficacy of void decree removing disability of minor.
APPEAL from chancery court of Harrison county, HON. V.A. GRIFFITH, Chancellor.
Wells, Stevens Jones and Mize, Mize Thompson, for appellants.
The decree attempting to remove the disability of minority should have been set aside and declared null and void. The court had no jurisdiction to enter the decree because of the fact that she and all of the parties to the petition were nonresidents of Mississippi at the time the petition was filed and the petition failed to show on its face the jurisdictional fact that the petitioner was a resident of Harrison county, Mississippi, which is jurisdictional.
The court will note that the petition to remove the disability of minority was sworn to February 2, 1924, and was filed February 5, 1924, and a decree entered attempting to remove the disability of minority on February 5, 1924. The petition was styled: "Julia Abbey Dulion, a minor, by Ura C. Dulion, her guardian and next friend, v. Roy Dulion and Fay Dulion Herrmann," and stated that petitioner would next show unto the court that she was a minor of the age of seventeen years and that her parents were dead. Then it avers that the two defendants named were nonresidents of Mississippi, but live in New York; that petitioner owned a one-sixth interest in certain real estate in Harrison county, which was inherited by petitioner and her five brothers and sisters; that the income from said real estate was small and that none of the parties who owned the same live in the state of Mississippi. Said petition nowhere averred just where the minor Julia Abbey Dulion lived, but it affirmatively averred that she was an owner of the property and that none of the parties owning same lived in the state of Mississippi, thereby showing affirmatively on its face that the minor nor any of her co-tenants, as brothers and sisters, resided in Mississippi. Prior to April, 1924, the chancery court had no authority to remove the disability of a nonresident minor but jurisdiction was conferred upon the chancery court to remove the disability of a minor only when the minor resided in the state of Mississippi and when in the chancery court of the county where the minor resided. See Sec. 300, Hem. Code 1917. Then secs. 301, 302, 303 and 304 provided what procedure should be followed, but in none of these sections did it confer upon the chancery court jurisdiction of a nonresident minor. This law was amended in 1918, but only with reference to the number of the kindred who should join in the petition to remove when the petition was ex parte. However, by chap. 158, Laws of 1924, sec. 314, Hem. Code 1927, the legislature conferred upon the chancery court the authority to remove the disability of minority where a nonresident minor owned property in Mississippi, but this act did not take effect until April 9, 1924. These statutes are very strictly construed, and every jurisdictional fact must appear upon the face of the petition and if it does not, then all of the proceedings are void. See Wilson v. McCorkle, 135 Miss. 625, 99 So. 366; Poole v. Jones, 136 Miss. 645, 101 So. 786; Hardy v. Pepper, 128 Miss. 27, 90 So. 181; Marks v. McElroy, 67 Miss. 545; Lake v. Perry, 95 Miss. 550. In other words, whenever the legislature provides that the chancery court shall have jurisdiction to remove the disability of minority, the proceedings set out by the legislature must be strictly followed and the party claiming under such a decree must show, without the aid of presumption, that the court had jurisdiction.
Watkins, Watkins Eager, Rushing Guice and John L. Heiss, for appellee.
We propose in dealing with the appeal of Miss Julia Abbie Dulion, to discuss the points relied on for reversal in the order in which the same are presented by the appellant's counsel. In brief of counsel the first point is as follows: "The court had no jurisdiction to enter the decree because of the fact that she and all of the parties to the petition were nonresidents of Mississippi at the time the petition was filed, and the petition failed to show on its face the jurisdictional fact that the petitioner was a resident of Harrison county, which is jurisdictional." We will endeavor to reply with as little prolixity as possible.
The original bill of complaint was not based upon any such ground, but was predicated and the trial had upon the theory that the appellant was an actual resident citizen of Harrison county, Mississippi. It is, of course, academic that the appellant, on appeal to this court, should present to this court the same case presented on the pleadings in the court below. This court cannot hear a case de novo. The case is before this tribunal on appeal. It can only examine the case tried by the chancellor in the court below and determine as to whether or not any reversible error was committed. The original bill of complaint in this case was filed in the chancery court of Harrison county, Mississippi, December 31, 1926. After having alleged, at the time she filed the bill of complaint in this case, that she was a resident of Harrison county, Mississippi, and having set out the alleged proceedings looking to removal of her disabilities, she alleges not that she was a nonresident of the state of Mississippi when said removal was had, but that she was in school in St. Louis, Missouri. Not only was it true that the original bill was predicated upon the idea that the appellant resided in Harrison county, Mississippi, February 8, 1924, but it sets out certain alleged imperfections in the proceedings removing her disabilities, which she asserts renders the same void. Nowhere in said bill does she allege, directly or indirectly, that she was not a resident of Harrison county, Mississippi, February 8, 1924, when the proceedings took place. Upon the other hand, the grounds of invalidity are entirely different and distinct.
It was not necessary to allege the residence of the appellant. Proceedings for the removal of disabilities of minority are statutory. Sec. 316, Hem. Code 1927; Sec. 644, Code 1906, is the only statute which provides what the petition shall contain and if Your Honors will place the petition for the removal of the disabilities of the minority by the side of this section, you will see that the same contains each and every allegation required by this section. If the legislature had intended to require the statement of the residence of the minor, such provision would have been made. The fact that the legislature did not require an allegation is conclusive as to its intention that the allegation was not jurisdictional. This court has never held in any case that it was necessary that the petition for removal of disabilities of the decree granting the relief show the residence of the minor. In Marks v. McElroy, 67 Miss. 545, 7 So. 408, the question was in the brief of counsel that the petition for removal of disabilities did not affirmatively show the residence of the minor, and a strong appeal was made in that case to have the proceedings declared invalid for that reason. This court held the proceedings invalid, but said that it did not appear from the record or elsewhere that the minor resided in the county where the decree was rendered.
In Lake v. Perry, 95 Miss. 550, 49 So. 569, the court declared the proceedings void because no person whatsoever was made defendant and the proper persons did not join in the petition. This court was careful not to announce the rule that all the jurisdictional facts should appear from the record, but said that the jurisdictional facts must be shown to have existed if there was no presumption of jurisdiction from the mere exercise of the right.
Counsel are correct in their statement that the act of 1924 did not go into effect until after the removal of the disabilities of the appellant in this case, but counsel have overlooked the fact that the act of 1922 contained practically the same provision. For the convenience of the court we set out the statutory law in force in 1924. First, sec. 543, Code of 1906, sec. 300 Hem. Code 1917, as amended by chapter 226, Laws of 1922, which is in the following language: "Chap. 226. An act to amend section 543 of the Code of Mississippi of 1906, Hem. Code 300, so as to provide for the removal of the disability of minority from nonresident minors. `Sec. 1, Be it enacted by the legislature of the state of Mississippi, the chancery court of the county in which a minor resides may remove the disability of his minority; and the chancery court of a county in which a nonresident minor owns real estate may remove the disability of minority of such minor as to such real estate. Sec. 2. That this act take effect and be in force from and after its passage.' Approved March 22, 1922." It is perfectly apparent that appellant's counsel have overlooked the act of 1922, and while sec. 544, Code of 1906, did not require that the petition for removal of disabilities allege specifically the residence of the minor, that section together with the act of 1922 makes it immaterial where the minor resides. As above stated, however, counsel were mistaken in their assumption that the act of 1924 was the first act authorizing the chancellor to take jurisdiction in the removal of the disabilities of a nonresident minor. We do not concede that the appellant was a nonresident minor — quite the reverse was true — but we are taking occasion to point out to the court the error into which appellant's counsel have fallen.
The chancellor took judicial notice of the residence and domicile of the appellant. In February, 1924, when appellant's disabilities were removed she was a minor; her parents were residents of Harrison county, Mississippi, at the time of their death, and at the very time of such removal the administration of her person and estate were under the charge, care and control of the Hon. V.A. Griffith, chancellor, who was her natural guardian, and he took judicial notice of the fact that she was resident and domiciled in Harrison county, Mississippi, and that her residence and domicile could not be changed. At the January term, 1924, of the chancery court of Harrison county, Mississippi, the chancellor signed a decree of the guardianship estate, passing the allowance of the fifth annual account of the guardian until an application for the removal of her disabilities of minority should be passed on by the court. The chancellor took judicial notice of these proceedings, and it is never necessary to allege matters and things that the court takes judicial notice of, and allegations contradictory thereof will be treated as such. Rome Ry. Light Co. v. Keel, 60 S.E. 468, 3 Ga. App. 769; Edenfield v. Bank of Millen, 63 S.E. 896, 7 Ga. App. 645; Miller v. Miller, 104 N.E. 588, 55 Ind. App. 644; Shackleford v. City of Jefferson, 150 S.W. 1123, 167 Mo. App. 59; Dirks Trust Title Co. v. Koch, 143 N.W. 952, 32 S.D. 551, 49 L.R.A. (N.S.) 513; Moon v. Hinds, 87 So. 603, 25 Ala. 355, 13 A.L.R. 1020; Edwards v. Ernest, 80 So. 729, 206 Ala. 1, 22 A.L.R. 1387; L. N.R. Co. v. Shikle, 90 So. 900, 206 Ala. 494; Hodge v. Joy, 92 So. 171, 207 Ala. 198; Matlock v. Johnson, 88 So. 182, 17 Ala. 669; 23 C.J.P. 113. Accordingly when the chancellor proceeded to hear and determine the petition of Julia Abbey Dulion for removal of her disabilities of minority, the court took judicial notice of the fact that her person and custody were under the control of that court; that there was then pending in that court a petition for removal of her disabilities, and that he had just signed an order passing the application for the approval of the fifth annual account awaiting a hearing on the application to remove her disabilities then pending before the court. These facts being true, it would have been a matter of surplusage to have alleged the residence of the minor, and not only that but the court took judicial notice that she was a resident of Harrison county, Mississippi, which had the effect of striking down any allegations to the contrary, if any there were, appearing in the petition.
Counsel for appellant claim that the petition for removal of disabilities showed on its face that appellant, Julia Abbey Dulion, was a nonresident of the state of Mississippi. As to the residence and domicile of the appellant, the petition, by implication, stated that the appellant resides in Harrison county, Mississippi. The petition alleges as follows: "that said property was inherited by petitioner and her five brothers and sisters from the parents of petitioner." This allegation is by implication that the appellant's parents lived and died in Harrison county, Mississippi, and that from them the appellant inherited the property in question, which, as a matter of law, would fix her domicile and residence in Harrison county, Mississippi. The petition contains no allegation to the effect that the appellant resided outside of Mississippi. Counsel for appellant seek to establish nonresidence of the appellant from the following allegation contained in the petition: "That the income from the same is small and that none of the parties who own the same live in the state of Mississippi. That the petitioner is now at school and is of sufficient age to manage her own affairs and to understand and appreciate her duties and obligations, and is well developed mentally and physically." Taking the allegation at its strongest against the appellee, the allegations rise no higher than to state that the appellant was living out of the state of Mississippi while attending school. An allegation that the appellant was out of Mississippi attending school was far short of an allegation that the appellant was a nonresident or was domiciled outside of the state of Mississippi. A most interesting case is that of Railway Co. v. Lemons, 206 S.W. 75, 5 A.L.R. 943. In that case a minor who had been emancipated by his parents was living in one county, while his parents lived in entirely another county. The minor had his disabilities of minority removed, not in the county where he was living and engaged at work, with the consent of his parents, but in the county in which his parents lived, and the supreme court of Texas, in a well-reasoned opinion, drew the distinction between the place where a minor lived and the place of his residence, and held that the disabilities were properly removed in the place of the residence of the parents, which was the residence of the minor in the eyes of the law, although the minor actually was engaged in making a living, with the consent of his parents, in another county. The question was again presented in Stadtmuller v. Miller, 11 Fed. 732, 45 A.L.R. 895. See, also, Gates v. Building Loan Association, 117 Fed. 732; Sampson v. Sampson, 112 N.E. 84; Trozo v. The People, 117 P. 150.
When the appellant filed her petition in the chancery court of Harrison county, Mississippi, containing the allegations therein to be found, with a general prayer for relief, the court had jurisdiction of the subject-matter and acquired jurisdiction of her person, irrespective of whether she was a resident or nonresident. The court having acquired jurisdiction of her person in any event, there would be a presumption in favor of the jurisdiction of the court to render such decree as was rendered. To make ourselves clear, counsel take the position that the chancery court in removing the disabilities of minority is exercising a special statutory power, in other words, a legislative power, and that there is no presumption as to the jurisdiction from the mere exercise thereof. This rule, however, is subject to careful examination and some modification. The court had jurisdiction of the subject-matter whether the minor was a resident or a nonresident. It acquired jurisdiction of the person by the filing of the petition, whether the appellant was a resident or a nonresident. The court having, therefore, in the initial proceedings acquired jurisdiction to proceed, every presumption from that time on would be indulged in favor of the exercise of jurisdiction, and the burden of proof would be upon the person attacking the jurisdiction to establish that the court was without jurisdiction. The distinction is this: that since the court had jurisdiction to entertain the petition, whether the minor was a resident or nonresident, that jurisdiction having attached, then in all subsequent proceedings it would be presumed that such jurisdiction as there exercised was properly done. In 15 C.J. 834, the following rule is given: "But where jurisdiction has once attached or is once established, and these courts have not transcended their powers, the validity of subsequent proceedings will be presumed until the contrary is shown, the rule being that if jurisdiction of the subject-matter is made to appear on the face of the proceedings the maxim omnia praesumunsur rite esse acta, applies; and one who relies on a loss of jurisdiction to invalidate the judgment must affirmatively show loss." The foregoing rule has been frequently announced in this court. In Carson v. Carson, 31 Miss. 578, it was held that with respect to courts of special jurisdiction all necessary jurisdictional facts must be shown by the record, in order to sustain the jurisdiction; but this rule applies only to questions of jurisdiction as to the subject-matter and not to the person; for whenever the jurisdiction has once vested as to the subject-matter, the rules which govern its exercise as to the person with respect to evidence, process, etc., are generally the same as those applicable to court of general jurisdiction. In this case the probate court of Yazoo county rendered a decree approving a final account of an executor on process by publication against a nonresident minor devise and heir. The statute required that an affidavit be made before citation by publication would be authorized, stating that the defendants were nonresident. It was claimed that the publication in a newspaper in this case was not process, because the records in the probate court did not show that any affidavit was made by the executor; that such affidavits must be proved to have existed as the foundation of the order of notice by publication. The court used the following language: "The validity of the order of publication, therefore, depends entirely upon the question whether the evidence upon which it was made was sufficient to authorize it; and as that evidence is not stated, and is not required to be stated, the presumption must prevail that the court acted correctly, and upon proper evidence." In McWilliams v. Norfleet, 60 Miss. 987, 994, the court said: "Where the power to determine exists and is exercised, it is to be presumed that the facts upon which the court acted were sufficiently established." From these authorities it is perfectly clear that since the court had jurisdiction of the subject-matter, whether the minor was a resident or a nonresident, that it will be presumed that the court found that the necessary jurisdictional facts existed. It being conceded that the chancery court of Harrison county, Mississippi, had jurisdiction of the subject-matter, whether the petitioner was a resident or nonresident, and the court having proceeded to take and exercise jurisdiction, every presumption applicable to a court of general jurisdiction will be entertained. See Ames v. Williams, 72 Miss. 760, 17 So. 762; Duke v. State, 57 Miss. 229; Weir v. Monohan, 67 Miss. 434.
Even if the appellant was a nonresident, the court had jurisdiction of the subject-matter, and could partially remove the disabilities. The exercise by the court of the power to remove the disabilities of minority entirely would not be void but would be erroneous only. We go a step further now, and without receding from any former position, say that even if the appellant was a nonresident infant, that the court, having jurisdiction of the subject-matter, and having, by reason of the fact that it had a right to partially remove her disabilities, the total removal of disabilities would not involve the question of jurisdiction, but would be mere error, which, of necessity, must be reviewed by appeal. In 15 C.J. 729, the rule is announced as follows: "Jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein, is what makes up jurisdiction; and when there is jurisdiction of the person and subject-matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. In order that jurisdiction may be exercised, there must be a case legally before the court, and the hearing, as well as the determination. Jurisdiction not dependent upon correctness of determination. Since jurisdiction is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the correctness or rightfulness of the decision made, for the power to decide necessarily carries with it the power to decide wrongfully as well as rightfully, subject to the qualification that the court can render only such judgment as does not transcend in extent or character of the law which is applicable to that class of cases."
Therefore, we submit that in view of the fact that from any standpoint the court had authority, whether the appellant was a resident or a nonresident to authorize her to convey land in Mississippi, and in view of the further fact that the only authority which she has exercised under the decree which is now brought in question is the limited authority which the court had the power to confer, irrespective of her residence and domicile, and in view of the further fact that if a direct appeal had been prosecuted the decree would have been reversed as to the excess authority, if any there was, that this court, in this suit to cancel the proceedings removing the disabilities of minority, should not, under any state of facts, set the same aside as against this appellee, because the power exercised by the appellant as to the appellee under the decree was that only of conveying land situated in Mississippi, which unquestionably the court had the jurisdiction to render. Love v. Insurance Co., 121 S.E. 648; Mitchell v. Hardy, 4 So. (Ala.) 182; Hull v. Bank, 199 S.W. 1148; Oil Co. v. Wenner, 76 S.E. 893; Watkins v. Perry, 139 P. 551, 25 Colo. App. 425; Blaine v. Dean, 142 N.W. 418, 160 Ia. 708; Martin v. Conley, 99 S.W. 613, 30 Ky. L. Rep. 728; Jones v. Jones, 44 So. 429, 119 La. 677; Kaufman v. Cooper, 101 Ala. 969, 39 Mont. 146; Schneider v. Lobinger, 117 N.W. 473, 82 Neb. 174; Mierke v. Sebecke, 74 A. 797; 1 Freeman on Judgments, 648.
Appellant's case is without equity. It appears that at the time the disabilities of minority were removed from appellant, Julia Abbey Dulion, she was going on eighteen years of age, and the evidence conclusively establishes that she was taking a fine education and was exceptionally bright, so much so that Mrs. Wilkes took from the newspapers clippings which were written in respect to her unusual brightness. In filing the original bill of complaint in this case it was necessary for her to account for the consideration which the record shows that she received from the sale of this property, as the result of the removal of her disabilities. She alleges that no part of this consideration was paid to her, and alleges positively that she, at the time of the filing of the original bill of complaint, had no part of the consideration. We call your Honors' attention to the fact that when the bill of complaint was filed, she was approximately twenty years of age, and she made solemn oath to the matters and things alleged in the bill of complaint. She took the testimony of her brother Paul Dulion and in his testimony he creates the impression that Roy Dulion, got all the money arising out of the sale of the property, and that neither he nor Julia Abbie Dulion got anything. She also took the deposition of her brother Roy Dulion, who conducted the proceedings for removal of disabilities, and who sold the property, and we invite your Honors' attention to his testimony. He actively creates the impression that Julia Abbie Dulion got no part of the money and endeavored to leave the court under the impression that he had dissipated her part of it. Not only that but the appellant takes the stand herself and she swears positively that she did not get any of the proceeds of the sale and she does not, although she is a young woman at the time she testified, nearly twenty-one years of age, exercise the frankness of telling the court that there had been a family settlement by which she had obtained certain property set apart for her, which, in all probability represented more value than that which she got from the sale of this property.
It will be noted that it would have been the duty of the appellant to tender back the consideration received unless she had alleged that she did not have it, so she excused herself from tendering back the purchase money by alleging in her bill and making oath to the same, that she had never received the money. In other words, that she was never under any obligation to make the tender. See Lake v. Perry, 95 Miss. 550, 49 So. 569, where the proper rule is announced upon the subject. The appellant endeavors to build up a strong case bringing herself within the rule. She alleged and sought by affirmative proof, offered from the members of her own family, that she had never received the consideration — in other words, that her oldest brother Roy Dulion, had received the consideration and dissipated the same. However, the appellees were able to ascertain the actual facts, and show that the appellant not only received, through other property acquired by her, the fruits of the trade but that she still had the same; that she and her sister borrowed ten thousand dollars on part of the property which they had acquired by reason of the family adjustment, and she still had property accruing to her by reason of the sale in value in excess of the purchase price paid by Mrs. Folkes.
The trial of this case was begun before the chancellor on oral testimony on May 26, 1927. The appellant was examined on that same day and adjournment was had until the 16th day of June, and upon the 18th day of June, 1927, appellant admits that everything she said and sought to prove in regard to her inability to return that portion of the purchase money received by her was untrue. She makes the following amendment to her answer: "Complainant here and now offers to carry out the lease contract executed by the defendant Theresa Folkes to the defendant Harry Latter and the First National Bank, Trustee, if complainant's purporting conveyance to Mrs. Theresa Folkes should be set aside and cancelled, and further offers to pay to the defendant Theresa Folkes the amount of money paid by Theresa Folkes to Roy Dulion for complainant's interest in said property or do whatever equity in the premises as the court may seem meet and proper." By the Court: "Let the amendments be made and filed by the clerk." In other words, the appellant had sought to make a get-away with her statement that she was relieved from doing equity by reason of the fact that her testimony and that of her witnesses was shown to be absolutely false, having been convicted in open court of flagrant falsity and effort to commit fraud, when the goods are found on her, and there is no escape, then and for the first time she offers to do equity. We respectfully submit that she has been guilty of inequitable conduct and there is not a single equity in her favor. She has taken the proceeds of this sale coming to her, and with it has made an investment, which according to this record, may be worth several times the amount which she invested therein. We respectfully submit that a minor who secures the aid of her family in a court of equity to remove her disabilities, and avails herself of the powers granted to the fullest extent, cannot chop her axe up into pieces and say: "I will avail myself of this extraordinary privilege here but I will disaffirm it here." The situation is shocking to the conscience of a court of equity. See Hutchinson v. Till, 101 So. (Ala.) 676; Commonwealth v. Filiatreau, 111 S.W. (Ky.) 1182; Primeau v. Granfield, 193 Fed. 911.
Mize, Mize Thompson and Wells, Stevens Jones, in reply for appellants.
Counsel strenuously contend that the equities are with appellees. It is our contention that the proof shows that this valuable real estate was and is the center of gravity for Biloxi and worth a great deal more money than what it brought. Here the complainants have offered to do equity by carrying out the lease contract executed by Mrs. Folkes to Harry Latter and the First National Bank, and also offers to pay Mrs. Folkes the amount of money that was paid to Roy Dulion for the complainant's interest. In other words, the offer is to restore the status. If the minor, therefore, proposes to make these parties whole, why all of this vigorous defense and standing upon their alleged rights under the deeds? There is only one sensible answer. There is a large excess value. There has been much profit at the expense of a helpless school girl, a victim of unfortunate circumstances and selfish interests. The equities therefore, are with appellant Julia Abbey instead of with the defendants. On all points argued the decree of the learned chancellor should be reversed and a decree entered here holding the emancipation proceedings void and remanding the case, if necessary, for further proceedings to make effectual the righteous ruling of the court.
Watkins, Watkins Eager, W. Lee Guice and John L. Heiss, in support of suggestion of error.
The court, in its opinion, does not expressly discuss the question that in the original bill of complaint in this case no mention was made of the fact that the court was without jurisdiction to remove the disabilities of minority from the minor because the record did not disclose that she was a resident of Harrison county, Miss. We interpret the decision to mean that since the original bill of complaint in this case alleged that the court was without jurisdiction, it was not necessary specifically to point out the grounds upon which the lack of jurisdiction was based. This assumption upon the part of the court was erroneous, and we wish to base an argument upon that theory. In the proceedings which are under review in this case, the court below had jurisdiction of the minor to hear and determine this controversy. The minor appeared in court through her counsel and attacked the validity of the decree removing her disabilities on certain specific grounds, prayed that the decree be set aside and annulled, and that the deed executed by her thereunder be canceled. The court having jurisdiction of the minor in this proceeding, in matters of practice and substantive law she became and was subject to the same principles as if she were an adult. In other words, her rights are to be determined in this proceeding just as if she were an adult suing to set aside a decree removing her disabilities of minority. To make ourselves clear, the fact that she is a minor suing to have her disabilities removed gives her no advantage, and she is subject to the same rules of law and practice as if she were an adult praying for the same relief. That being true, each and every challenge to the jurisdiction of the court removing her disabilities of minority was a separate cause of action, and should have been set out and alleged in the original bill of complaint in this case challenging the jurisdiction of the court. Your Honors have erroneously treated her attack upon the jurisdiction of the court, for certain specific reasons, as being a sufficient general attack upon the jurisdiction of the court. It is, of course, academic that the appellant, on appeal to this court should present to this court the same case presented on the pleadings in the court below. This court cannot hear a case de novo. The case is before this tribunal on appeal. It can only examine the case tried by the chancellor in the court below and determine as to whether or not any reversible error was committed. The original bill of complaint in this case was filed in the chancery court of Harrison county, Mississippi, December 31, 1926. The original bill of complaint alleges "Julia Abbey Dulion, a minor, by her brother, Barton P. Dulion, as next friend, would respectfully show unto the court the following facts: "That they are both resident citizens of Harrison county, Mississippi." After having alleged at the time that she filed the bill of complaint in this case that she was a resident of Harrison county, Mississippi, and having set out the alleged proceedings looking to removal of her disabilities, she alleges not that she was a nonresident of the state of Mississippi when said removal was had, but that she was in school in St. Louis, Missouri: "Complainant would further show that at the time said petition was filed and decree entered, she was in school in St. Louis, Missouri, and that on the 8th day of February, 1924, a deed was sent to her to sign and she did sign and acknowledge said deed, but knew absolutely nothing about her disabilities of minority being, or having been attempted to be, removed."
Not only was it true that the original bill of complaint was predicated upon the idea that the appellant resided in Harrison county, Mississippi, February 8, 1924, but the original bill of complaint sets out certain alleged imperfections in the proceedings removing her disabilities, which she asserts render the same void. But nowhere in said bill of complaint filed in the court below upon which this case was tried does she allege, directly or indirectly, that she was not a resident of Harrison county, Mississippi, February 8, 1924, when the proceedings took place. Upon the other hand, the grounds of invalidity are entirely different and distinct, and consist of the following: (a) That she did not authorize any one to file a petition for the removal of her disabilities, and had no knowledge or information in respect thereto until long afterwards, (b) That her next friend, Ura Dulion, was suffering from a nervous breakdown and was incapacitated to act as next friend, (c) That no oral evidence was introduced at the hearing of said cause.
There are no other imperfections in the proceedings alleged, and, as above stated, the original bill of complaint in this cause was filed and the trial was based on the theory that when the disabilities were removed, she was an actual resident and had her domicile in Harrison county, Mississippi. The original bill of complaint did not contain any charge or any averment equal thereto that the record did not show that the complainant was a resident of Harrison county, Mississippi. If we are correct in our statement of the law that each alleged invalidity in the proceedings removing the disabilities of minority from the minor constituted a separate cause of action and should have been specifically set out and submitted to the court below by appropriate pleadings, then, this suggestion of error should be sustained.
The entire question has been foreclosed in our favor in the very interesting case of Cox v. American Freehold Mortgage Co., 88 Miss. 88. In that case, a widow, Mrs. Cox and her daughter exhibited their original bill of complaint in the chancery court of Jefferson county, Mississippi, to set aside a trustee's deed made in pursuance of a deed of trust which was foreclosed. The sale under deed of trust was challenged upon a number of specific grounds. The record was before the court, and while the deed of trust provided that the sale should be conducted either by the trustee or by some person appointed by the trustee in writing, the sale was made by some person other than the trustee, without written appointment from the trustee. This, of course, invalidated the sale. In the original bill of complaint, such attack was not made, but was brought in by amendment. The original bill of complaint charged that the sale under the deed of trust was void for the specific reason hereinbefore referred to. When the amendment was filed, however, specifically challenging the sale on such ground, more than ten years had expired, and the question was presented as to whether or not each and every attack upon the validity of the sale constituted a different cause of action. If so, the matters set up in the amendment were barred by the statute of limitations. This court gave careful consideration to the question, and in a very able opinion delivered by Mr. Justice WHITFIELD, held that each specific attack upon the validity of the sale was a separate cause of action, and that the specific attack for failure in the appointment of some one to conduct the sale, not having been alleged within ten years, the cause of action was barred.
We are sure that this court in passing upon the question, having reached the conclusion that the proceedings removing the disabilities of minority were void, they were subject to collateral attack; that she might have filed a bill for partition ignoring the removal proceedings, and that such proceedings would have been cast aside as void if brought into the case. The same may be said of the Cox case. Mrs. Cox and her daughter could have brought ejectment and recovered the property, and could have avoided the sale by showing the facts alleged in the amended bill of complaint; but Mrs. Cox and her daughter did not take that course. They elected to go into a court of equity and enlist its high functions in procuring the instrument to be set aside. That being true, they were subject to equitable principles of law; they were bound by their pleadings that each specific alleged defect should be directed and brought to the attention of the court, and that defects should not be directed and brought to the attention of the court were conclusively presumed not to exist.
In Bank v. Virgin (Neb.), 38 Am. St. Rep. 747, the court used the following language: "We are, however, unable to perceive wherein a judgment entered by a court confessedly outside of the issue submitted for its determination can be said to rest upon any other or different principle than one in which the subject-matter is entirely foreign to the jurisdiction conferred upon it." In Waldren v. Harvey (W. Va.), 102 Am. St. Rep. 959, the court said: "A decree is a conclusion of law from pleadings and proofs, and where there is a failure of either pleading or proofs, there can be no decree." In Stanwood v. Savings Bank, 178 Fed. 670, the court used the following language: "There should have been no decree for foreclosure. The prayer for it in the original bill was distinctly withdrawn by amendment, and there was nothing in the answers of the bank asking it. Had the bank desired a foreclosure, it should have sought it by a cross-bill. The pleadings being silent, it is to be presumed both parties were willing the mortgages should stand." See Dee v. Deist, 123 Ill. App. 364; Reed v. Munn, 148 Fed. 737; Phelps v. Elliott, 35 Fed. 455; Dobbins v. Pratt (N.Y. App. Div.), 206 N.Y. Supp. 5; Daniel v. Pryor, 227 S.W. 102; also 21 C.J., p. 670.
We have heretofore shown the court that by previous decision this court has foreclosed in our favor the question that in an attack upon a decree or sale, each separate ground of invalidity is a separate ground of action. We now propose to go a step further and show the court by the unanimous adjudications of this and other courts that the complainant is bound by the allegations contained in the pleadings in the lower court, and cannot amend them so as to include a new cause of action on appeal. We call your Honors' attention to a distinction. There is a difference between an appellate court's giving consideration to error occurring in the trial in the court below and not directed to the attention of the trial court. and permitting an appellant to add a new cause of action to that filed in the court below. Courts have sometimes, in order to avoid injustice, and in their discretion, noticed errors not specifically directed to the trial court. These occasions, however, are rare, and rest upon certain fundamentals hereinafter to be referred to. But this appellant is asking the court to do what no court has ever permitted; that is to say, not only directs the attention of this court to errors not discussed in the court below, but actually seeks to add a cause of action not asserted in the pleadings in the court below. In other words, this appellant asks and is permitted to insert in her bill of complaint, by assignment of error in this court, a cause of action not alleged in the court below. Now, bear in mind, you cannot get away from the case of Cox v. Mortgage Company; it was a well-considered case, has never been overruled and constitutes a rule of property.
The direct question was presented in Commercial Bank v. Doe, 9 S. M. 613. In that case, the guardian of certain minor children filed a suit in ejectment to recover property. The defendant justified its possession and right to occupy the property by a certain judicial sale, void on its face. Such proceedings were introduced without objection and acted upon by the court. The court said that the question could not be raised in this court for the first time, using the following language: "It is insisted in argument that the whole proceedings in the probate court, as set out in the record, are void; that the sale under them is void, and, consequently, that the derivative title of the defendant is void. But these questions were not presented in the court below at all; the record was read without objection, and if the questions had been there raised, those matters might possibly have been supplied, the absence of which, it is now urged, makes the whole void. That point should have been presented by exceptions to the admission of that record. This court is called on to correct an error, of which neither party complained in the court below. This is against our usual mode of proceedings in questions of this kind, and would convert this into a court of original, not of appellate jurisdiction. See Doe v. Natchez Ins. Co., 8 S. M. 205; Neely v. Planters' Bank, 4 Ib. 113; Sessions v. Reynolds, 7 Ib. 130." We place special emphasis upon the following language: "This is against our usual mode of proceedings in questions of this kind, and would convert this into a court of original, not of appellate jurisdiction." That is exactly what Your Honors are doing in this case. You have permitted the appellant to amend her original bill of complaint by assignment of error in this court and proceeded to grant relief upon the amendment. Our position is correct unless Cox v. American Freehold Mortgage Co., is wrong. See Vicksburg Mfg. Supply Co. v. Jaffray Construc. Co., 94 Miss. 282, 49 So. 116; Ferguson v. Applewhite, 10 S. M. 304; Exum v. Canty, 34 Miss. 533; Kennedy v. Sanders, 90 Miss. 524; Noxubee County v. Long, 141 Miss. 72; Ransom v. Harroun, 147 Miss. 579. We also direct the attention of the court to the following cases taken from the decisions of other states, which are directly in point: Allston v. Marshall, 20 So. (Ala.) 850; Gillespie v. Ohio Oil Co., 102 N.E. (Ill.) 1043; Blalock v. Adams, 114 S.E. (Ga.) 345; Isett v. MacClay, 108 Atl. (Pa.) 610; United Service Co. v. Roach, 297 S.W. (Mo.) 91; Noonan v. Seaside, 191 Pac. (Ore.) 651; Cox v. Davis, 80 So. (Ala.) 437; Walters v. Ransdell, 291 S.W. (Ky.) 399; Barnard v. Kell, 113 Atl. (Pa.) 836; Van Norden v. McCormick, 17 Fed. (2) 568; Pinson v. Jones, 221 S.W. (Mo.) 80.
Mize, Mize Thompson and Wells, Stevens Jones, against suggestion of error.
The court has requested counsel for appellant to answer appellee's suggestion of error upon one ground, to-wit: That, since the original bill of complaint did not challenge the jurisdiction of the court to remove the disabilities of minority from the minor on the ground that the record did not show that the minor was a resident of Harrison county, Mississippi, it cannot be raised for the first time in this court. We respectfully submit that this question has been answered by Lake v. Perry, 95 Miss. 550, and the authorities cited therein, together with other authorities that we will cite in this reply.
The court will bear in mind that the gist of the minor's bill of complaint herein was to disaffirm her act wherein she conveyed to the appellee, Mrs. Folkes, her one-twelfth interest in the real estate described in the bill of complaint. She does not aver in direct language that said decree was void because she did not authorize any one to file the petition for removal, or because she did not sign same, or because no oral evidence was introduced, etc.; but, after making the entire file in the removal cause exhibits to the bill of complaint, then, she simply averred some facts, among which were: that she was in school at the time said petition was filed and that she did not know that such petition was being filed or presented and that she was not in court and that it had been filed and acted upon without her consent or knowledge. However, she makes this direct allegation: "Complainant avers that said decree purporting to remove her disabilities of minority is void and should be cancelled, and the deed from her to Mrs. Folkes should be set aside and cancelled and complainant declared to own her one-sixth interest in said property above described;" . . . and does not state a conclusion of the pleader, that the court was without jurisdiction in the case. But, suppose she had used that language. It would merely have been a conclusion of the pleader and would have amounted to nothing. Therefore, when these facts are set up showing that the court was without jurisdiction in said removal cause and that the attempted removal was absolutely void, then the point is raised and put in issue. In Lake v. Perry, supra, the court makes use of the following language: "The power conferred by our code upon the chancery court to remove the disabilities of minors is not judicial in its character. It may be exercised by the legislature without the intervention of other authority, or committed to any officer or commission having no judicial authority. The relief sought is private in its character, affecting no right of others. The privilege and the method of availing of it are created and defined by the statute, and the proceedings are valid only when in conformity to its regulations. Under such circumstances the court but exercises a statutory power, and it is incumbent upon one relying upon the decree to show that the court had acquired jurisdiction under the law. No presumption of jurisdiction arises from the mere fact of its exercise." The statute that was being construed by the court at that time was the same statute that was attempted to remove the disabilities of minority of the appellant.
As said by Judge FREEMAN: "A void judgment is in legal effect no judgment at all. By it no rights are divested. From it no rights can be obtained. Being worthless, in itself, all proceedings under it are equally worthless. It neither binds nor bars any one. All acts performed under it are equally worthless." Freeman on Judgments (3 Ed.), sec. 117. See, also, Lester v. Miller, 76 Miss. 309; Mastin v. Gray, 27 Am. Rep. 149; McComb v. Ellet, 7 S. M. 505; Kramer v. Holster, 55 Miss. 342; 12 Enc. Pleadings Prac. 201; Black on Judgments, sec. 279; and Freeman on Judgments, sec. 123.
The court will see that this case of Lake v. Perry, lays down the proposition that it is incumbent on the one relying upon the decree to show its validity. This same proposition was held in the case of Marks v. McElroy, 67 Miss. 545, which was approved in the Perry case. To the same effect are: Brown v. Wheelock, 75 Tex. 385, 12 S.W. 111; Cunningham v. Robinson, 104 Tex. 227, 136 S.W. 441; Buckley v. Herder, 133 S.W. 703; Lemmon v. Gulf R.R. Co., 134 S.W. 742. In Hindman v. O'Connor, 54 Ark. 627, 13 L.R.A. 490, which case is also referred to in the opinion heretofore written by the court in the instant case, under a statute similar to ours, the Arkansas court held that the residence of the minors is jurisdictional; that it was a condition upon which the court could remove the minors' disabilities, and that the allegation had to appear of record; that, being a matter of special and limited jurisdiction, everything had to appear of record, and there was no aid by presumption. This court has so repeatedly held that all jurisdictional facts must appear of record in a court of limited jurisdiction that we deem it unnecessary to cite authorities, but, since counsel for appellee undertakes to show that the chancery court in this instance is not one of limited jurisdiction, we will cite some few authorities. Galpin v. Page, 85 U.S. 350, 21 L.Ed. 959, wherein the supreme court of the United States said: "But where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction, upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases upon the record." See, also, Lester v. Miller, 76 Miss. 309; Craft v. DeSoto County, 79 Miss. 616; Bolivar County v. Coleman, 71 Miss. 832; Switzer v. Benny, 94 Miss. 209; Hardy v. Peper, 128 Miss. 27, 90 So. 181; Wilson v. McCorkle, 135 Miss. 625, 99 So. 366; Poole v. Jones, 136 Miss. 645, 101 So. 786.
It is well established now in this state that the burden is upon the one relying upon the decree removing the disabilities of minority to show a valid decree. This the appellee has not done and cannot do, since the record wherein the appellant's disabilities of minority were attempted to be removed not only fails to show that the court did have jurisdiction, but affirmatively shows that the court did not have jurisdiction, in that it specifically and affirmatively alleges that none of the parties live in the state of Mississippi. The petition for removal specifically states that the two defendants reside in New York and that the property is owned by petitioner and her five brothers and sisters, none of whom live in the state of Mississippi, therefore showing affirmatively that the chancery court of Harrison county, Mississippi, not only did not have jurisdiction, but could not have jurisdiction, of said proceeding, and the decree is silent on the question of jurisdiction. An exhibit filed with the bill of complaint is just as much a part of the bill as the allegations. Carpenter v. Douglas, 104 Miss. 74; Swope v. Watson, 136 Miss. 348, 101 So. 486. If the bill of complaint in the instant case had alleged that the court was without jurisdiction and filed as an exhibit a record which showed that the court did have jurisdiction, the bill would have been demurrable; but since, as a matter of fact, the exhibits filed show on their face that the court did not have jurisdiction, and the bill alleged generally, without stating the causes, that the decree was absolutely void, and this allegation of the bill is shown by the bill of complaint, to-wit: the exhibits, which show on their face that the court did not have jurisdiction, we cannot see what stronger allegation could have been made. The exhibit to the bill showing on its face that the court had no jurisdiction in the removal proceeding amounts to, and is, an allegation and showing by the bill of complaint that the court was without jurisdiction.
Argued orally by S.C. Mize and J. Morgan Stevens, for appellants, and W.H. Watkins and W.L. Guice, for appellees.
Appellants Ura C. Dulion and Julia Abbey Dulion, minor, by next friend, filed their original bills of complaint in the chancery court of Harrison county, Mississippi, against Mrs. Theresa Lopez Folkes, appellee, and other persons, seeking the cancellation of a certain deed executed by each of them in favor of Mrs. Folkes, appellee.
The gravamen of Ura C. Dulion's bill was that a certain deed executed on the 8th day of February, 1924, by which she conveyed to the appellee Mrs. Folkes a one-twelfth undivided interest in property known as the Grant building in Biloxi, Mississippi, should be canceled, because at the date of the execution of the deed, and for more than two years thereafter, she was suffering from some nervous trouble superinduced by drugs, which rendered her incapable of making a contract and incapacitated her from making a valid conveyance of the property in question. The prayer of her bill was that the deed executed by her to Mrs. Folkes be canceled.
The gravamen of the bill exhibited by the minor, Julia Abbey Dulion, was to the effect that the deed executed on February 8, 1924, by her to Mrs. Folkes, was executed when she was under the disability of minority, being about sixteen years of age, and set up that there had been an invalid proceeding to remove her disability of minority, and also set up distinctly that she did not authorize any one to file a petition for the removal of her disability of minority, and had no knowledge or information thereof until some time after the decree had been rendered and entered; that her next friend, Ura C. Dulion, named in the petition as such, was incapacitated to act as next friend because, in substance, such next friend was non compos mentis; that no oral evidence was introduced before the chancellor, at the hearing of the petition, to remove her disability of minority; and her bill of complaint alleges, generally, that the proceedings to remove her disability of minority were void, and she, likewise, prayed for a cancellation of the deed, and both bills prayed for a sale of the land for partition, and alleged that the price paid for the land was far below its real value.
The defendant Mrs. Folkes, appellee here, denied every material allegation set forth in each of the bills, and set up, as to Ura C. Dulion, that she was not mentally incapacitated, but that, if the court should be of the opinion that she was mentally incapacitated, afterward, at a time when her reason had been restored, she had ratified and approved her act in executing and acknowledging the deed and receiving and appropriating the purchase price.
In the lower court, by agreement of counsel, both cases were tried together, and the chancellor dismissed both bills.
We think there was sufficient evidence, together with presumption, to warrant the chancellor in holding that Ura C. Dulion was possessed of sufficient mental capacity to execute the deed in controversy, and, likewise, we think there was sufficient evidence of ratification to warrant the chancellor in dismissing her bill, and we cannot say that the decree of the chancellor in regard thereto was manifestly wrong. We think it unnecessary to set forth the facts on this issue.
As to the bill exhibited by the minor, Julia Abbey Dulion, by next friend, we shall consider only one point made by counsel for appellant, which is as follows:
"The decree attempting to remove the disability of minority should have been set aside and declared null and void, because the court had no jurisdiction to enter the decree because of the fact that she and all of the parties to the petition were nonresidents of Mississippi at the time the petition was filed, and the petition failed to show, on its face, the jurisdictional fact that the petitioner was a resident of Harrison county, Mississippi."
This case will be disposed of here upon the question whether or not the decree and proceedings removing the disabilities of minority of Julia Abbey Dulion were void. The petition was filed by the minor, by next friend, on February 5, 1924, and said petition shows that the minor was seventeen years of age; that her parents were dead; that the names and residences of two of her next of kin within the third degree were Roy Dulion and Fay Dulion Herrman, nonresidents of Mississippi, and residents of the state and city of New York; that she owned a one-sixth interest in real estate located in the city of Biloxi, Harrison county, Mississippi, of the value of thirty-five thousand dollars, and personal property there located of the value of four thousand dollars; that all of said property was inherited by petitioner and her five brothers and sisters from their deceased parents; and then there occurs this sentence:
"That the income from said real estate is small, and that none of the parties who own the same live in the state of Mississippi." (Italics ours.)
The petition of said minor further alleges that she was in school and of sufficient age and intelligence to manage her own affairs, well developed mentally and physically; that all of the owners of the property desired to sell same; and that the property could not be sold advantageously, or so dealt with, so long as petitioner was a minor. The petition further stated that it was to her best interest to have her disability of minority removed; that the income from the property was not sufficient to support and educate her, and that her support and education were then being paid for by her brothers and sisters. The petition prayed for the removal of the minor's disability for all purposes, and for general relief. The petition was signed and sworn to before a notary public in the city of New York, by Ura C. Dulion, on the 2d day of February, 1924. On the 5th day of February, 1924, Roy Dulion and Fay Dulion Herrman filed an answer to this petition, admitting all and singular the allegations thereof, and consenting that the prayer of said petition be granted. On that same day, the chancellor entered a decree removing the disability of minority of Julia Abbey Dulion generally, and for all purposes; there was no allegation or recital in the decree that the court had jurisdiction, or that said minor, Julia Abbey Dulion, was a resident of Harrison county, Mississippi. In said minor's original bill, she alleged that she had not received any of the purchase price paid by Mrs. Folkes for the land here in controversy; but after it was developed by the evidence, with reasonable certainty, that the purchase price for the Dulions' half interest in the land was twenty thousand dollars, that this sum was paid by check payable to each of the six named, one of which was Julia Abbey Dulion, and that the check was indorsed by her and collected in due course, and that certain family settlements had been made between the Dulion brothers and sisters, Julia Abbey Dulion amended her bill and tendered to the appellee Mrs. Folkes the purchase price. Mrs. Folkes owned one-half of this property, and the six Dulion children owned the other half in solido.
We think it would be well to state these facts: That the parents of Julia Abbey Dulion were residents of and domiciled in the city of Biloxi, county of Harrison, state of Mississippi, where they died; that Julia Abbey Dulion was born two days after the death of her father, and that her mother died, while living in Biloxi, when said Julia was about twelve years of age. After the mother died, Julia Abbey Dulion and Ura Dulion were birds of passage, Julia being sometimes in Biloxi with relatives there, sometimes in New York, sometimes in Boston at school, and immediately before these disability proceedings were instituted, she was in school in St. Louis, Missouri. The bill of complaint in this case alleges that she (said minor) is a resident of Harrison county, Mississippi.
Several months before this proceeding for removal of disability of minority here under review was instituted, there was filed a petition of the minor, by next friend, praying for the removal of her disability of minority, in which it was stated that she was a resident of Harrison county, Mississippi; but this petition, so far as the evidence on the question of her residence is concerned, seems never to have been disposed of by the court or by the chancellor.
For the purposes of this opinion we shall assume that the chancellor was warranted in finding on the trial of this case that Julia Abbey Dulion was a resident of Harrison county, Mississippi, and shall assume that he so held.
The real point raised and argued here for decision is to the effect that neither the petition nor the decree nor any part of the record in the removal of disability proceedings shows that Julia Abbey Dulion was a resident of Harrison county, Mississippi, and that, the decree removing her disability of minority having been rendered by the chancery court of that county, and that court being a court of special or limited jurisdiction, not a court of record for that purpose, the decree was void, and the deed executed by Julia Abbey Dulion to Mrs. Folkes while only sixteen years of age did not bind her.
The decision of this question must rest upon the construction to be given sections 300 and 301, Hemingway's 1917 Code (sections 543 and 544, Code of 1906). The former section reads as follows:
" Removal of Disability of Minority. — The chancery court of a county in which a minor resides may remove the disability of his minority."
The latter section reads as follows:
" Removal of Disability of Minority — Proceedings. — The application therefor shall be made in writing by the minor by his next friend, and it shall state the age of such minor and the names and place of residence of his parents, and, if he has no parent, the names and place of residence of two of his nearest kin within the third degree, computed according to the civil law, and the reasons on which the removal of the disability is sought; and, when such petition shall be filed, the clerk of the court shall issue the proper process, as in other suits, to make the proper parties defendant, which shall be executed and returned as in other cases; and any person so made a party, or any other relative or friend of the minor, may appear and resist the application."
It is true that the latter section does not require that the petition shall state the residence of the minor, but it is likewise true that the former section quoted, supra, does not confer jurisdiction upon the chancery court to remove the disability of minority of any other than the minor who is a resident of the county. We think it is obvious that the requirements of the latter section do not and could not exclude the requirements of the former section, and that in a court of special and limited jurisdiction, with only the power conferred by the statute, the petition and the record of the proceedings must show that the court had the power to exercise the special and limited jurisdiction conferred by the statute.
Counsel for appellee feebly contends that because the property inherited by the parties is shown in the petition for removal of disability as being in Harrison county, that therefore the petition states enough to show that the minor was a resident of that county. That position is wholly untenable in the light of the statement in the petition for the removal of disability, that "none of the parties who own the same (referring to the lands) live in the state of Mississippi." Julia Abbey Dulion, the minor, was the main party seeking relief in the court, and we feel safe in concluding that the allegation of the petition that all of the owners lived outside the state negatives the idea that she resided in Harrison county. Nor do we think, insofar as the sections of the statute quoted, supra, apply, that a minor not within the class named in the statute can, by his appearance by petition confer jurisdiction upon a court of the subject-matter of which it did not have jurisdiction.
The subject-matter conferred by section 300, etc., upon the chancery court is that of removal of disability of minority of minors residing in the county. Any other view of the statute would mean that though a guardianship was pending in De Soto county, in the extreme northern part of the state, or in the chancery court of any other county, if the minor was dissatisfied with the status and management of his estate by the court having jurisdiction thereof he would be authorized to apply to the chancery court of any other county in the state to be relieved of his disability of minority, and thwart the management of his estate by the chancery court of the county having jurisdiction thereof.
Relative to the removal of disability of minority, there is no presumption raised in favor of the jurisdiction of the chancery court in the matter of the removal of disability of minority, this court having so often held that such jurisdiction is limited and restricted; and the statute conferring the jurisdiction is the source of power of the court to act, and the allegations in the petition must of necessity be the basis of the jurisdiction of the chancery court to act in any such case.
Jurisdiction of the subject-matter cannot be conferred on the court by the consent of the parties, although a minor, like an adult, is bound by decrees rendered in courts of record, where the minor is properly before the court; but parties themselves may not confer jurisdictional power upon a court without it, simply by consent. Switzer v. Benny, 94 Miss. 209, 48 So. 401.
We are not unmindful of the fact, nor do we avoid the rule announced in the case of Cason v. Cason, 31 Miss. 578, where the court, in effect, said that the rule requiring jurisdictional facts to appear in the record, for courts of special and limited jurisdiction, applies to subject-matter, and not to the person. But the rule cannot be invoked here, for the reason that the subject-matter composes a class of persons whose disabilities are sought to be removed, and no others. That being true, no presumption is indulged in favor of a court of special and limited jurisdiction, and, where the jurisdictional facts do not appear of record, its judgments are void. Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107.
In the case of Marks v. McElroy, 67 Miss. 545, 7 So. 408, this court held that in exercising special statutory powers, conferred in derogation of the common law, and, proceeding by virtue of the statute, as in the removal of the disability of minority, a court (though of record) is to be considered as of limited jurisdiction and is not to be presumed to have jurisdiction other than is shown to exit.
This was the view of the court prior to the adoption of the Constitution of 1890, which conferred upon chancery courts full jurisdiction of minors' business. But the case of Marks v. McElroy has been followed and approved in the cases of Lake v. Perry, 95 Miss. 550, 49 So. 569; Hardy v. Pepper, 128 Miss. 27, 90 So. 181; Wilson v. McCorkle, 135 Miss. 525, 99 So. 366; Poole v. Jones, 136 Miss. 645, 101 So. 786, all of which were cases involving the removal of the disability of minors.
The rule which we have announced seems to be supported by the weight of authority, though there is conflict. But the reason on which we base the rule for requiring that the record show the jurisdictional power of the court to act in a given cause is found in the case of Galpin v. Page, 85 U.S. (18 Wall.) 350, 21 L.Ed. 959, wherein the court held:
"The facts essential to the exercise of a special jurisdiction must appear in such cases upon the record."
The case of Hindman v. O'Connor, 54 Ark. 627, 16 S.W. 1052, 13 L.R.A. 490, is a case on all fours with the case here under consideration, and the authorities cited therein strongly support the view of the statutes here under consideration that section 301, taken together with section 300, makes the residence of a minor jurisdictional — a condition upon which the court can remove the disabilities of the minor.
The record of the proceedings to remove the disability of minority of Julia Abbey Dulion not only fails to show jurisdiction in the court (power to act), but negatives the right of the court to proceed by an allegation that the petitioner did not live in the state.
What we have hitherto said applies with full force to counsel for appellee's argument that the court could take judicial notice of the fact that the petitioner, Julia Abbey Dulion, was a resident of Harrison county, for the reason that live guardianship proceedings were pending in that court at that time. We have already said that it was necessary to plead the subject-matter in order to confer power upon the court of limited jurisdiction to act, which would seem to be a sufficient answer. But there is the additional answer that section 2108, Hemingway's 1927 Code (section 2426, Code of 1906), confers jurisdiction of nonresident guardians and nonresident wards where the ward has real or personal property situated in a county of this state.
Counsel for appellee, in order to uphold this removal of disability of minority, next insists that in February of 1924, chapter 226 of the Laws of 1922 was in full force and effect, and that thereby the chancery court of Harrison county had jurisdiction to remove the disability of minority of nonresident minors as to lands in the county, and that while the decree removed the disability of minority in this case generally and for all purposes, that the court was authorized by said chapter to partially remove the disability of minority as to the real estate of a minor; that the decree here under review is simply an erroneous decree; that by virtue of said chapter the court acquired jurisdiction, and, having acquired jurisdiction, that it will be treated as a valid decree within the purview of said chapter cited, supra.
A sufficient answer to this contention is that the proceedings were not instituted under and by virtue of said chapter 226, and that neither the petition nor the decree conform to the power conferred upon the court by said act. And this seems to be so clear that we do not deem it necessary here to decide whether or not said chapter 226 of the Laws of 1922 is constitutional and enforceable. The petition did not set forth the facts upon which the court had rendered the decree in response to it, and the court in its decree took no notice of the lands owned by the minor, and there was no effort to confer jurisdiction upon the court for that purpose as we view the pleadings and the decree.
Counsel for appellee next urges upon the court that the appellant's case is without equity, because in the original pleadings she alleged that she had never received any of the purchase money; and, after the trial had progressed, and an adjournment of the court had from May until June, the appellant minor, finding that the appellee was able to show that she had received the purchase money, thereupon amended her proceedings and tendered to Mrs. Folkes, the purchaser under her deed, the purchase price received by her by virtue thereof.
It is true that minority is a shield of protection and not a weapon for wrongdoing. But if it is true, as we have above said, that the effort to remove her disabilities was a nullity and that the decree thereon was void, then the law is that the minor has a right to disaffirm her action while under the disability of minority in this class of cases; and, even though she had received the purchase money and squandered it, yet, the law would permit her to disaffirm her action during minority, and equity would follow the law.
The record shows that perhaps her interest in this land is now worth considerably more than she received therefor; the property is well rented with considerably higher net rental than she received, and the contract is for ninety-nine years. She tenders back the purchase price she received therefor; the case stands as though she had not as a minor executed a deed, and the status of the parties is restored. She owns her interest; Mrs. Folkes does not. See Lake v. Perry, supra. The minor was not bound by her act; she was not bound by a void decree to remove her disability of minority. She has a right in law and in equity to have her property. She may, and she has, disaffirmed the deed executed by her in this case.
We think the chancellor erred in dismissing the bill of Julia Abbey Dulion, as the proof showed that the lands were incapable of partition in kind.
We are remanding the case as to Julia Abbey Dulion, with directions to the lower court to order a sale of the land for partition as the statute directs.
Affirmed as to Ura Dulion, and reversed and remanded as to Julia Abbey Dulion.
Affirmed. Reversed and remanded.
ON SUGGESTION OF ERROR.
After a careful consideration of the briefs filed in this case, we have reached the conclusion that the suggestion of error should be overruled, but we shall render an additional opinion upon one point, presented originally, but ignored in the original opinion.
We have concluded that it is proper for the court to adhere to the original opinion in this case — that the decree removing the disability of minority of the appellant Julia Abbey Dulion by the chancery court of Harrison county, was absolutely void, and by which we awarded to the minor her interest in the land.
It is conceded and indisputable that the appellee Mrs. Folkes must of necessity have based her defense to the bill filed herein upon a deed executed to her by the appellant during her minority, and, if that deed is to be up held, it must be because of some efficacy or virtue in the decree removing the disability of the minor, the appellant. The main opinion held that the decree was not binding upon the minor, because it was void. Counsel for appellee on suggestion of error press upon us strongly that the original bill did not charge that said decree was void for the reason (upon which we decided the case) that the record in the removal of disability proceeding failed to show that the minor was a resident of the county in which the decree was rendered; that this was a separate cause of action, and not raised by the bill in the lower court; and, therefore, the court could not base its judgment and opinion thereon.
Counsel, in pressing the suggestion of error, urge upon us with great force that the fact that the decree removing the disability of the minor was void, because the residence of the minor was not shown by the record, is a separate and distinct cause of action from those reasons assigned and urged in the original bill as rendering said decree void.
A wealth of authorities have been ingeniously collated, which we shall not take up in detail, but shall only refer to one case relied on, in order to refute any idea or theory of conflict between this case and that of Cox v. American Freehold Land Mortgage Co. of London, 88 Miss. 88, 40 So. 739, in which this court held that where, in an amended bill, complainants set up a cause of action wholly distinct from that in the original bill, and in the interim between the filing of the original bill and the filing of the said amendment the bar of the statute of limitations has become complete, this court can grant no relief upon the new cause of action thus set up for the first time. The bill, in the above case, was filed to redeem certain lands sold under a trust deed. A demurrer was interposed to this bill. After the defense of the ten-year statute of limitations thereto was completed, the bill was amended, so as to charge that the appointment of Stinson, who made the sale herein, was not made in writing or acknowledged and recorded. By the terms of the contract, the trustee was authorized to appoint, in writing, an agent and auctioneer to act in his absence for him. The demurrer was again interposed, the main ground being that the bill was filed only one day before the bar of the statute of limitations would have been completed. The demurrer was refiled after amendment was made as to Stinson's appointment not being made in writing. This court held, by the terms of the contract, that the appointment must be in writing, and also that the sale was void. It was then pressed upon the court that the amended bill was filed more than eleven years after the sale of the land, and therefore was barred by the ten-year statute of limitations. Chief Justice WHITFIELD, speaking for the court in this case, said:
"The cause of action is the reason why the action is sought to be maintained, the ground or reason for the action. We have carefully examined these authorities, and we are clearly of the opinion that the law is, as in them laid down, that wherever there is a cause of action set up in an amended bill, wholly distinct from the cause of action set up in the original bill, and the bar of the statute has become complete in the interim between the filing of the two, no relief can be had on the new cause of action set up in the amended bill."
In other words, Judge WHITFIELD held that, when the amended bill was filed, a complete and adequate defense had arisen to the amended bill. He also held, as we view the case, that the allegation in the amended bill as to the trustee was separate, distinct, and apart from the original bill to redeem the land from the mortgage sale.
As we interpret appellant's bill in this opinion, the gravamen of it was to disaffirm her action in signing a deed while she was a minor. True it is that she unnecessarily set up, as an exhibit to her bill, the chancery court proceedings undertaking to remove her disability of minority, and also exhibited the deed made by her to Mrs. Folkes, incidentally alleging that the decree was void for certain reasons, but not assigning the precise ground upon which our main opinion was based, and asked that the deed be canceled, that she be granted the right to her interest in the land, and sale thereof for partition.
In view of the conclusion we have already announced, Mrs. Folkes had no defense to the bill of appellant to disaffirm appellant's action in minority, save that it rested in and was based upon the void decree of removal of disability. It was wholly unnecessary to exhibit the record of the removal proceedings of the chancery court. If the decree was void, it was a nullity. It had no effect whatever; it afforded no protection to Mrs. Folkes, and constituted no defense. It continues void forever. Consequently Mrs. Folkes' deed, based on nothing, resulted in nothing to her. Her deed was of no effect. In the Co. case, supra, it was apparent to the court that a defense had arisen in the case at bar, while here no defense is shown, even if we say that the cancellation of the deed, apart from its disaffirmance, constitutes a separate cause of action, to which we do not assent.
In the case of Gabbert et al. v. Wallace, 66 Miss. 618, 5 So. 394, Judge COOPER, speaking for the court, said:
"As the point on which our decision turns was not made in the court below, nor raised by counsel here [italics ours], we have been reluctant to dispose of the cause upon it; but since it goes to the very foundation of complainant's right, and an affirmance of the decree would give sanction to other proceedings of like character, we have concluded that the decree ought not to stand, since, assuming everything to be true that the evidence proves, or tends to prove, complainant is not entitled to any relief against the appellants."
In the case of Wilson v. Alabama G.S.R. Co., 77 Miss. 714, 28 So. 567, 52 L.R.A. 357, 78 Am. St. Rep. 543, Wilson sued the railroad company for obeying a void order of the state board of health, in which case Wilson was a passenger on defendant's train with a ticket to Meridian, Mississippi. Although he had a health certificate, the railroad company refused to allow him to disembark in Mississippi, and carried him to Alabama. The railroad's defense was a void order of the state board of health, which, if enforceable, would protect it. The court below gave a peremptory instruction for the railroad, and this court reversed this ruling, holding that the order of the state board of health was unreasonable and void. This objection was made specifically for the first time in this court, and Chief Justice WHITFIELD, speaking for the court, said:
"Ordinarily it is true that objections not specifically made below cannot here be relied on. The reason of that rule, which gives it its life, is that the opposite party may have opportunity to meet and obviate the objection. But where the court can see, as to the plaintiff, that he has no cause of action on which a judgment can be legally pronounced, or, as to the defendant, that he has no defense which the law can allow to stand, there is presented, in both cases equally, a case where it is not legally possible to obviate the fatal fault, if opportunity to do so had been given, and this court must in such case act upon the fatal infirmity presented by the record."
We conclude that the unnecessary allegation as to the void decree did not in the slightest degree affect the rights of the complainant, the appellant, to disaffirm her deed, and that no defense could be predicated upon a deed executed during minority, if the deed rested upon the efficacy of a void decree removing the disability of minority. See Lake v. Perry, 95 Miss. 550, 49 So. 569.
Overruled.