Opinion
No. 32123.
March 30, 1936. Suggestion of Error Overruled, April 27, 1936.
1. INFANTS.
Chancery court, when removing disabilities of minority, acts as court of limited jurisdiction, and hence its jurisdiction will not be presumed.
2. INFANTS.
Chancery court, when removing disabilities of minority, acts as court of limited jurisdiction, and hence party relying upon decree has burden to show that court acquired jurisdiction to enter decree.
3. EVIDENCE.
Falsity of allegations in petition for removal of disabilities of minority may be proved by parol evidence.
4. INFANTS.
Decree removing disabilities of minority held invalid, where evidence disclosed that minor did not reside in county in judicial district of court which entered order, and hence minor's signing of mortgage was ineffectual, notwithstanding petition recited that minor lived in such county (Code 1930, sections 353, 357).
5. INFANTS.
Decrees removing disabilities of minority whereby minors were authorized to sue and be sued, to buy and sell real and personal property in their own names, and perform all acts necessary for proper management of their estates, held insufficient to authorize minors to mortgage their property (Code 1930, sections 353, 357).
6. MORTGAGES. Powers.
Mortgage on property is not a sale thereof, but is mere security for debt, and ordinarily power to mortgage is not included in power to sell.
7. INFANTS.
Where words of decree removing disabilities of minority are unambiguous, power thereby conferred cannot be extended beyond plain meaning of language used (Code 1930, sections 353, 357).
8. EQUITY.
Where language of decree is unambiguous, resort to pleadings is not permissible for its interpretation.
APPEAL from chancery court of Bolivar county. HON. R.E. JACKSON, Chancellor.
Shands, Elmore, Hallam Causey, of Cleveland, for appellants.
The chancery court of the second judicial district of Bolivar county had no jurisdiction to remove disabilities of Mattie Parker Howard because she resided at that time in Sharkey county.
Chapter 158, Laws of 1924; Chapter 123, Laws of 1918; Sections 353, 354, 355, 356 and 357 of the Code of 1930; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Lake v. Perry, 95 Miss. 550, 49 So. 569.
A void judgment is in legal effect no judgment at all. By it no rights are divested.
Freeman Judgments (3 Ed.), sec. 117; Freem. Ex., Sec. 20; Lester v. Miller, 76 Miss. 309, 24 So. 193; Dulion v. Folks, 153 Miss. 91, 120 So. 437.
Actual residence in the county where the chancery court undertakes to remove the disabilities is what de termines the jurisdiction and not mere averments in the petition.
Wilson v. McCorkle, 135 Miss. 525, 99 So. 366; Hardy v. Pepper, 128 Miss. 27, 90 So. 181.
It is incumbent upon one relying upon the decree to show that the court had acquired jurisdiction under the law.
Hayes v. Federal Land Bank, 162 Miss. 877, 140 So. 340.
Marcella Parker's disabilities were not generally removed and she was not given authority to mortgage her land, but only to sell and manage it.
A sale is a transfer of property upon a consideration of the payment of money. In a barter, goods are exchanged for other goods. In a loan, such as is testified to in this case, goods or property are delivered from one party to another to be returned by the latter to the lender in kind.
Jones v. State, 108 Miss. 530, 66 So. 987.
A power to sell and convey real estate does not, as a general rule, confer a power to mortgage, and a mortgage executed under a power of attorney, authorizing the attorneys to sell and convey only is void.
1 Jones on Mortgages (7 Ed.), sec. 129, page 185; Stokes v. Payne, 58 Miss. 614; Hawxhurst v. Rathgeb, 51 P. 846; Stump v. Warfield, 65 A. 346.
It may be insisted by the appellees that the language of the decree by which Marcella Parker was empowered "to do and perform all acts which in her judgment are necessary for the proper management of her estate" empowered her to mortgage her estate to Dr. D.D. White. We are inclined to believe that such a contention cannot be sustained, because the words "to manage" do not mean "to mortgage."
Duncan v. Hartman, 22 A. 1099; Commonwealth v. Johnson, 22 A. 703; Golinsky v. Allison, 46 P. 295.
A power given to another "to manage" property carries the idea that such person shall "direct, administer, oversee, or superintend" the property. Such words imply a retention of the property, not a disposal of it.
Good v. Montgomery, 51 P. 681.
The court cannot by construction deem Marcella Parker's disabilities were generally removed.
Section 755, Code of 1930; Anderson v. McInnis, 56 So. 170; Blaylock v. Lonn, 157 Miss. 783, 128 So. 555.
Where general powers are followed by an enumeration of particular powers, the particular powers control in construction of powers.
13 C.J. 537, par. 501; Myers v. Woods, 158 S.W. 909; Jewel Tea Co. v. Watkins, 145 P. 719; Railton v. Taylor, 38 A. 980.
We respectfully say that this court should render a decree, adjudging that appellants are entitled to their proportionate part of the rents for the land for the years 1934 and 1935 as alleged in the original bill.
An evasive answer which does not deny the allegations of the bill is not sufficient to put complainant upon proof.
Applewhite v. Foxworth, 79 Miss. 773, 31 So. 533; Colbert v. Henley, 64 Miss. 374, 1 So. 631; Hinton v. Mills, 120 Miss. 388, 82 So. 264; Metcalfe v. Wise, 159 Miss. 54, 132 So. 102.
If a party intends to rely upon an estoppel, he must plead it, or he must at least allege facts which amount to an estoppel.
21 C.J. 1247, par. 260; Turnipseed v. Hudson, 50 Miss. 429; Industrial Savings Bank v. Greenwald, 158 So. 734; Penton v. Brown, 131 So. 14; Trust Co. v. Brewer, 143 Miss. 146, 108 So. 424; Roberts v. Bookout, 139 So. 175; First National Bank v. Savarese, 134 So. 501.
There is no averment or proof that Dr. White or Mrs. McMurchy relied upon, or were misled by, the averments in the removal of disability petitions.
Hart v. Foundry Machine Co., 72 Miss. 809, 17 So. 769; Bridge Creek v. Webster, 150 So. 915; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726; Hinds County v. Scanlon, 132 So. 567; Gladney, Inc., v. Louisiana Magazine Co., 156 So. 659; 20 R.C.L. 1068, par. 312.
Roberts Smith, of Cleveland, for appellees.
If Mattie Parker Howard was twenty-one years of age at the time she executed the deed of trust in favor of the appellee, D.D. White, on January 28, 1930, then she cannot complain. It requires no citation of the law to support this proposition, she being sui juris could dispose of her property in any legal way she saw fit.
If she were not twenty-one years of age at said time, yet, if her disabilities of minority were properly removed and she were fully emancipated, then her acts in executing said note and deed were equally valid and binding upon her.
If she were not of legal age and her disabilities of minority had not been properly removed for all purposes, then we submit that she was estopped from denying her age when she executed the deed of trust and from denying the validity of her acts in executing the note and deed of trust in favor of the appellee, D.D. White.
Commander v. Brazil, 88 Miss. 668, 41 So. 497.
The appellants sued the appellees for a partition of land and the cancellation of a mortgage, by the foreclosure of which the interest of the appellants in the land was divested. This mortgage was signed by the appellants, Mattie Parker Howard, and by Marcilla Thomas, formerly Marcilla Parker, who died thereafter, leaving the other appellants as her sole heirs at law. The case was tried on bill, answer, and proof, and the bill of complaint was dismissed.
At a time when Mattie Parker Howard and Marcilla Thomas were minors, decrees in vacation were rendered in Bolivar county, Mississippi, removing their disabilities of minority. As to Mattie Parker Howard, the appellants say that the decree removing her disabilities of minority is void, for the reason that she did not reside in Bolivar county when it was rendered, and, as to both of them, that the decrees do not confer upon them the power to mortgage their property.
Section 353, Code 1930, provides that: "The chancery court of the county in which a minor resides may remove the disability of minority." The petition filed for removing the disabilities of minority of Mattie Parker Howard alleges that: "Your petitioners and defendants are resident citizens of the second judicial district of Bolivar County, Mississippi." The decree contains no adjudication of the place of Mattie Parker Howard's residence.
The chancery court, when removing the disabilities of minority, is one of limited jurisdiction, and therefore no presumption as to its jurisdiction arises, "and it is incumbent upon one relying upon the decree to show that the court had acquired jursdiction under the law." Marks, Rothenberg Co. v. McElroy, 67 Miss. 545, 7 So. 408.
If the allegations in this petition that Mattie Parker Howard resided in Bolivar county may be looked to in support of the decree, as to which we express no opinion, parol evidence is admissible to show that the allegations were not true. Wilson v. McCorkle, 135 Miss. 525, 99 So. 366.
Such evidence was here introduced and shows, without conflict, that Mattie Parker Howard did not reside in Bolivar county, Mississippi, when the decree removing her disabilities of minority was rendered. But the appellees say that (1) the evidence discloses that Mattie Parker Howard was twenty-one years of age when she executed the mortgage; and, if not, (2) she is estopped from pleading her minority.
Neither of these contentions is supported by the evidence.
The decree removing the disabilities of minority of Mattie Parker Howard, among other things, recites that: "It is therefore ordered, adjudged and decreed, and the court doth decree, that the disabilities of minority heretofore existing against Mattie Parker Howard, one of the heirs of Ben Parker and Mattie Parker, deceased, be and the same are hereby wholly and completely removed, and the said Mattie Parker Howard fully emancipated from the said disabilities. And the said Mattie Parker Howard is hereby authorized and empowered to sue and be sued, to buy and sell real and personal property in her own name and to do and perform all acts which in her judgment are necessary for the proper management of her estate, the same as if in truth and in fact the said Mattie Parker Howard was twenty-one (21) years of age and upwards."
The decree removing the disabilities of minority of Marcilla Thomas is identical with the Mattie Parker Howard decree, except that the name "Mattie Parker Howard" appears between the words "existing against" and "one of the heirs." The name "Marcilla Parker" appears later in the decree between the words "and the said" and the words "is hereby authorized." We will assume, but only for the purpose of the argument, that the name "Mattie Parker Howard" in this second decree is, manifestly, a clerical error, and that the name "Marcilla Parker" may be read in lieu thereof.
Section 357, Code 1930, provides as follows: "The decree may be for the partial removal of the disability of the minor so as to enable him to do some particular act proposed to be done and specified in the decree; or it may be general, and empower him to do all acts in reference to his property, and making contracts, and suing and being sued, and engaging in any profession or avocation, which he could do if he were twenty-one years of age; and the decree made shall distinctly specify to what extent the disability of the minor is removed, and what character of acts he is empowered to perform notwithstanding his minority and may impose such restrictions and qualifications as the court may adjudge proper."
These decrees, after reciting that the disabilities of minority of the two minors "are hereby wholly and completely removed," do not then proceed, in the language of the statute, to empower them to do all acts in reference to their property, and making contracts, sue and be sued, and engage in any profession or avocation which they could do if they were twenty-one years of age, but proceed to distinctly specify what acts they were empowered to perform. The general language, therefore, of the decrees is qualified by the specific language, immediately following, and the things which the minors are authorized to do must be limited thereto.
It will be observed that these decrees do not specifically authorize the minors to mortgage their property, but the appellees say that the power to sell includes the power to mortgage.
A mortgage on property is not a sale thereof, but is a mere security for a debt, and, ordinarily, the power to mortgage is not included in a power to sell. Stokes v. Payne, Kennedy Co., 58 Miss. 614, 38 Am. Rep. 340. This is in accord with the authorities elsewhere. 14 C.J. 1271. It may be, as was said in Stokes v. Payne, Kennedy Co., supra, that "a more liberal construction is made in those cases in which the person who has the power is also interested in the estate on which it is to be exercised, than in those in which the power is given to one to encumber the property of another." But that rule cannot apply here. A minor is incapable of contracting unless and until his disabilities of minority are removed, and then only to the extent provided in the decree removing them, and, where the words of a decree are plain and unambiguous, the power thereby conferred cannot be extended beyond the plain meaning of the language used.
Again, it may be said that both of these petitions for the removal of the disabilities of minority pray that they be wholly and completely removed, and that the minors be given complete power to sue and to be sued, and to do all acts pertaining to the proper management of their business, and to sign all necessary deeds of conveyance, mortgages, trust deeds, or other papers that may be necessary in the management of their affairs.
Where the language of a judgment or decree is plain and unambiguous, no resort to the pleadings on which it is founded is necessary or permissible for its interpretation. Moreover, the court below had the right to grant all or a part of the prayer of these petitions.
Reversed and remanded.