Opinion
December 13, 1948.
1. Assistance, writ of — when will issue.
In a suit for partition when the land has been sold, and the sale confirmed, the purchaser is entitled to a writ of assistance, equivalent to the writ of habere facias possessionem at law, to put the purchaser in possession, and this without notice to any of the parties to the suit and notwithstanding there was no prayer in the original petition for such a writ and no provision therefor was made in the final decree. The writ is issued by the clerk without any special order of the chancellor and is executed by the sheriff as all such writs are executed.
2. Partition — homestead — husband of tenant in common not necessary party.
When a wife is the owner of an undivided interest in land as a tenant in common and she resides on the land with her husband as their homestead, the husband is neither a necessary nor a proper party in a partition and after the final decree a writ of assistance may issue against him as well as her without any notice to either of them, if she was a party duly in court in the partition suit.
3. Bill of review on newly discovered evidence — want of diligence must be clearly rebutted.
The petition to be allowed to file a bill of review because of newly discovered evidence must clearly show by the facts that no want of reasonable diligence in discovering the evidence is to be imputed to the petitioner and all inferences of a want of diligence must be rebutted by a complete statement of facts in that regard.
4. Bill of review — newly discovered evidence — facts known to the court when original decree made.
A bill of review for newly discovered evidence will not be allowed when it is shown that the facts claimed to be newly discovered were known to the court when the decree complained of was made and the facts were incorporated into that decree.
Headnotes as revised by Montgomery, J.
APPEAL from the chancery court of Pike County, R.W. CUTRER, Chancellor.
R.B. Reeves, for appellant.
We submit that on February 12, 1946, when a final decree of confirmation was entered by the Chancellor, that at that time, no relief such as a writ of possession was requested and no such relief was recited in the final order and thereafter and approximately two years thereafter, Curtis Hackett by a simple motion, sought relief and asked the court for a writ of habere facias possessionem and that he did so against two defendants namely, Maggie Hackett Dillon and Victor Dillon, without obtaining service of process and without requesting same. We call the court's attention to 7 So. at page 355, "It is held that if the motion is made for a decree at a sale at the term of confirmation of the sale, the parties being held at present, would not be entitled to any notice; but if a motion be not made until a subsequent term, notice would be required."
So we must therefore conclude that the appellee could not obtain relief on this simple motion without notice and without service of process and this he so did, and therefore, the case must be reversed.
Since it might be said that the defendant, Maggie Hackett Dillon, waived the service of process by entering her appearance and filing an answer to the motion, we submit to this court that even if that be true, Victor Dillon is a stranger to the entire proceeding. His name was never mentioned in the entire lawsuit according to the record until this motion was filed in February, 1948, which sets up the fact that Victor Dillon is a tenant in possession of part of the property and the motion seeks his ejectment along with Maggie Hackett Dillon, and judgment was rendered against each of them. We submit that in 78 So. at page 7, it is stated, "The judgment being rendered against T.E. Marshall and B.F. Marshall jointly, as an entire judgment, cannot be valid and cannot be supported unless there be service of process on each of the defendants. If it is void as to one, it is void as to all. In addition to actually proving the serving of the process by the constable there would necessarily have to be proof that summons was returned to the justice of the peace because he would not be authorized to proceed until such return was made and the record wholly failed to show any such return."
And again in 38 So. at page 35, it is held that, "The judgment was absolutely void where the defendant was not served with summons more than five days before the rendition of the judgment and in this case it is shown that the Bank of Commerce brought suit against E. Comenitz and a number of others in Justice of the Peace court. Service was had on E. Comenitz on the 19th day of September, 1903, and on the other defendants several days before that date. Judgment was taken by default against all the defendants on the 23rd day of September, 1903. All these defendants found their way in Chancery Court seeking an injunction alleging that the judgment was void as to all the defendants because one of the defendants had not been served properly with process. The court said the judgment was absolutely void and being an entirety, was void as to all the defendants. This is the well settled rule in Mississippi."
We must conclude therefore, that the judgment taken against Maggie Hackett Dillon and Victor Dillon is void as to Victor Dillon and is therefore void as to Maggie Hackett Dillon.
We submit further that the appellant, Maggie Hackett Dillon, had a right to file her bill of review and the court was mistaken when he sustained a demurrer to the petition seeking such relief and we call attention to 4 So.2d 494, which states, "Or suppose that instead of appealing, the losing party had filed within two years, a bill of review for error apparent on the face of the record. There the entire record, which would include the finding of facts is examined, without reference to the evidence and if there be error of law apparent on the face of the record and this error is erroneous, the decree will be vacated; and if the trial court should refuse to do so, an appeal may be taken to this court. It cites Denson v. Denson, 33 Miss. 560, and Gilleylen v. Martin, 73 Miss. 695, 19 So. 482."
We feel that even though the petition seeking relief of the court to file a bill of review might not be perfect, yet it is sufficient to withstand a general demurrer and we will again call the court's attention to 156 So. at page 511, which states, "The rule is, that if there be sufficient equity on the face of a bill to require an investigation of the facts, in other words, if the bill has some merit and is considered as a whole, if it shows a good cause of action, it will stand against a general demurrer. This authority cites Griffith's Chancery Practice, paragraphs 170, 291, 298 and 310." B.D. Statham, for appellee.
The court did not commit error in sustaining the demurrer to the petition asking leave to file a bill of review. A close reading of the answer and petition of the appellant to the motion of the appellee will reveal that the appellant's sole ground to a bill of review is that there is newly discovered evidence based on fraud of the appellee which will entitle her to file a bill of review. This evidence, although many words are written to explain it, is simply that the appellee owned seven-tenths of the forty acre tract, which had situated thereon two houses, one barn, one crib, etc., the appellant owning three-tenths, although there is no proof in the record that the interest of W.A. Hackett was purchased by the appellant, of which ownership the appellant had no knowledge, or that the forty acres could have been divided in kind. There is not the slightest proof in the record that the forty acres could have been divided in kind, granting the ownership to be as stipulated in the petition. There are no affidavits or other records attached to the answer-petition indicating the property could have been divided in kind.
Granting that the allegations of the petition are true and the same must be assumed on demurrer, there is no fraud charged nor newly discovered evidence shown.
The record shows that the Bill for Partition was filed on February 14, 1944, at which time the appellee owned a one-tenth interest. On February 19, 1944, he purchased six-tenths interest. He had a legal right to make the purchase and there is no fraud in his purchasing such interest. He filed the instrument for record because the decree confirming the sale adjudicates this ownership. The appellant knew of this ownership at least on that date if she did not know of it before that date, and she could have certainly ascertained these facts had she examined the records of deeds in the Chancery Clerk's office prior to the date of the decree confirming the sale.
Bills of review for newly discovered evidence are not favored in a court of equity. The following is quoted from Mississippi Chancery Practice, Griffith, Section 640: ". . . The allowance of a bill of review for newly discovered evidence is not a matter of right, and all the authorities agree that such a bill is not favored by the courts. It is within the sound discretion of the court and the discretion is one that should be cautiously exercised. . . ."
The case of Imbragulio v. Hubert, 171 Miss. 505, 158 So. 138, also holds that bills of review are not favored and there must be sound reason for allowing them.
The court, in the case of Williams v. Williams, 176 Miss. 251, 169 So. 27, stated: ". . . The allowance of a bill of review for newly discovered evidence is within the sound discretion of the court to be exercised by legal rules, . . ."
It is stated in 19 Am. Jur. 439 that: "The granting of a bill of review in those cases where leave of court is required, as, for example, for newly discovered evidence or new matter, is within the sound discretion of the court. . . ."
There is every reason, based on logic, to interpret the action of the Chancellor in the case at bar as being founded on his sound discretion. There is no apparent reason why he should have ruled otherwise. The appellant had had her day in court, was represented by counsel, who bid for her at the very sale she is now attempting to attack, and thereafter, did nothing with reference to any inequitable action, if such there be, until this brother appellee sought possession of the property he had bought and for which he had paid.
It has been generally held that a petition for a bill of review should be so worded and have attached thereto sufficient exhibits to warrant the disposal of the entire petition by a demurred. The following quotation is from Mississippi Chancery Practice, Griffith, section 640: "He is required therefore to so present his preliminary application that it may be promptly tested on demurrer as to which end he is required under modern practice to annex to his preliminary petition as an exhibit thereto a copy of the bill of review which he proposes to file; first, that leave being granted a different bill from that brought to the attention of the court may not be filed; and second, that the proposed bill, thus by a copy of it, and the full record of the former case being before the court the defendants to the proposed bill of review may be thereby enabled to demur generally to the whole of the bill as proposed on the ground that it does not state sufficient facts to entitle the complainant to the relief by way of review or to any part thereof therein prayed, or to demur specially to its form or other procedural features, thereby reaching a vital part of the petition, the said proposed bill being integral to the extent of such a purpose by being attached as an exhibit. Or the defendant may demur to the petition itself, as distanct from the proposed bill exhibited, for its failure to comply with procedural requirements or to its failure to state sufficient facts to entitle it to prevail as such a petition."
The authority above cites Enochs v. Harrelson, et al., 57 Miss. 465.
It is stated in 19 Am. Jur. section 440: "The proper mode of applying to the court for leave to file a bill of review for newly discovered evidence is by verified petition. The petition must state the facts clearly and distinctly and be supported by the affidavits of witnesses so as to enable the court to determine whether the newly discovered evidence when produced will be of such a character as will make it controlling in the cause. The affidavit must show that the party seeking the review did not have any knowledge of the new matter set forth in his petition and bill of review at the time of the hearing or when the original decree was given."
The Supreme Court in Williams v. Williams, supra, stated: "The application for leave to file the proposed bill was properly denied for the further reason that there was not filed with, or as an exhibit to, the petition, affidavits of the witnesses by whom it was proposed to prove the newly discovered facts, and there was no showing that it was impossible or impracticable, to file such affidavits. . . ."
It is further generally held that the petition with the exhibits thereto must show that the matters brought forward were newly discovered and that they could not have been discovered in time with the use of diligence and that the new matter asserted is, in fact, the truth, or one or more of these. If the appellant is relying upon the sufficiency of her petition that it sets out newly discovered evidence based upon fraud of the appellee, then certainly there is no doubt that the appellant is guilty of laches and lack of due diligence in that she has waited for over two years within which to file her petition. The appellant admits by her petition that she knew of the purported-to-be newly discovered evidence, because she was cognizant of the decree of the court which was filed in the matter of the sale of the real estate. This decree was certainly sufficient to put her on notice of the claim of the appellee to seven-tenths interest in the real estate. This is true, granting that the appellant did not have notice of the records of the deed to the appellee, which was duly recorded, as the record will reveal, prior to the rendition of the final decree.
There can be no doubt the appellant is guilty of failing to use due diligence in the filing of her petition of permission to file a bill of review. A reading of the record reveals without doubt that the appellant knew, or had reason to know, that the appellee owned a seven-tenths interest in the property. All of this was known to her at the time of the entering of the final decree, at which time she was being ably represented by counsel. She could have known of these facts before the rendition of the final decree if she had made appropriate inquiry in the office of the Chancery Clerk.
Even after the entry of the final decree, and the appellant cannot deny she was not cognizant of the decree, she did not appeal; she did not file a motion for a re-hearing; she did nothing.
Assuming that the appellant is not guilty of laches, lack of due diligence and that the petition is in proper form, there is still no evidence or proof in this record to support a finding or an assumption by the court that the tract of land and the other property could be divided in kind, that is, seven-tenths, two-tenths and one-tenth, to the respective parties appearing to have this ownership. The petition of the appellant should have shown that a different result would have been had with the revelation of this ownership, and the absence of such proof results in the assumption that the property could not have been divided in kind.
It is possible to interpret the petition of the appellant, especially in view of the fact that reference is made to certain instruments in the former hearing, that it was intended to attack the final decree on the ground that there was an error apparent on the face of the record, in which case her petition will be in the nature of a writ of error. Granting that this was the intent, the same objections heretofore made of lack of diligence, inadequacy of form, etc., are applicable.
The answer-petition of the appellant is defective in that it does not contain a verification.
Section 639, Griffith, Miss. Chancery Practice concludes with the following statement: ". . . . It must contain an appropriate prayer and must be verified by the complainant or else by some person for him who has actual knowledge of the facts averred."
19 Am. Jur. section 440, states: ". . . . Ordinarily, the affidavit must be made by the party making the application for the bill of review unless it appears from special circumstances that the whole subject is so fully in the knowledge of some other person that he can satisfy the court on all matters upon which they are to act. The solicitor for the party cannot make it unless good reasons appear for the party not making it . ."
The petition, in the case before the court, was signed by the appellant's solicitor and the purported oath was made by the solicitor who does not swear whether the affidavit is made on his knowledge or the knowledge of his client. No excuse or reason is found in the record as to why the petitioner did not verify the petition. As it thus appears, not only are there no affidavits of witness as to proof, but the petition is not sworn to by the appellant.
It is a fundamental requirement that the petition for leave to file a bill of review and the bill of review must contain all parties who were parties to the former proceedings, unless cause is shown why such parties should not be joined.
Griffith, Chancery Practice, section 638, provides: "The petition, and the bill if allowed, must include as parties — and this applies generally to all bills of review — all who were parties to the original decree, and if some of them are dead then their heirs or legal representatives as the nature of the case may require, and modern practice has extended this rule as to parties so as to include all those parties whose interests have become such that their rights would be substantially affected by the review of the decree as proposed by the bill."
The Supreme Court, in the cases of Friley v. Hendricks, 27 Miss. (5 Cushm.) 412, and Barber v. Armstead, 82 Miss. 788, 35 So. 199, specifically held that all parties to the former proceedings must be made parties.
The brief of the appellant would attempt to excuse the absence of all of the other parties, but it fails to explain why W.A. Hackett and J. Gordon Roach, the purchaser of the personal property, were not joined.
The court did not commit error in ordering the issuance of a writ of assistance. "Every court necessarily has and retains its own power to enforce its own orders, judgments and decrees." Griffith, Chancery Practice, section 649. This power has been further clarified and enlarged by the State Legislature, section 1375, Mississippi Code of 1942, provides that "decrees, where a master or special commissioner is not appointed to evecute them, shall be executed by the sheriff; and the clerk shall issue all writs of fieri facias, habere possessionem, or other final process, according to the nature of the case, directed to the sheriff, and . . ."
The Chancellor, in his final decree confirming the sale of the land and personal property "authorized and directed (him) to execute a deed of conveyance to Curtis Hackett, the purchaser of the realty and to J. Gordon Roach, the personality." It necessarily follows that Curtis Hackett, the appellee here, was entitled to receive possession of the realty. Actually, the Supreme Court, in interpreting Section 1375, supra, has held that the statute embraces and authorizes the issuance of a writ of assistance. Griswald v. Simmons, 50 Miss. 123; Jones v. Hooper, 50 Miss. 510.
Griffith, Chancery Practice, section 651, states: ". . . But sometimes a defendant in possession of it as adjudged by the court, in which case a writ of assistance, often call a writ of possession, is issued. Where by final decree all interest in the land is divested out of the defendant, a writ of possession, which is equivalent of a writ of habere facias possessionem at law, may issue upon the petition of any party thereunto entitled against any party to the decree; and it is issued of course without notice so far as the parties to the record are concerned, when necessary to put into execution the character of the decree mentioned. . . ."
Insofar as this appellant is concerned, she has no grounds for objections that the motion filed was not sworn to and that there was no service of process or other notice served upon her. She answered and filed her petition, thereby waiving all possible objections thereto.
It is insisted by the appellant that since there was no process on Victor Dillon, the husband of the appellant, the order of the court is a nullity.
The name of Victor Dillon appears only one time — in the motion. The order directing the issuance of the writ of assistance does not name him. There is nothing in the record to show that he appeared, objected to the proceedings or appealed here. It is now contended that Victor Dillon, if he has a meritorious claim, which he has not, will protect his rights if and when a conflict arises between him and the appellee.
In February, 1944, Curtis Hackett and others filed a petition in the Chancery Court of Pike County to partite certain land and following this a decree was entered adjucating that the land was not susceptable of partition in kind and the land was sold for a division of the proceeds. The original petition for partition alleged that each one of the parties complainant and the parties defendant owned an undivided one-tenth interest in the land. This petition was sworn to on February 14, 1944. The final decree, confirming the sale and ordering distribution of the funds, adjudicated the interest of Curtis Hackett to be a seven-tenths interest.
At the time of the partition Margaret Hackett Dillon was living on a part of the lands and continued to reside thereon after the sale. On January 23, 1948, Curtis Hackett filed a motion moving the Court to direct the issuance of a writ of habere facias possessionem. No notice of this motion was given, but in response thereto Mary Hackett Dillon filed her answer to the motion and in her answer petitioned the Court for leave to file a bill of review. We need not concern ourselves with the novelty of this pleading, but we observe that regardless of its form it objected to the issuance of the writ of habere facias possessionem on the ground that no process was had on Maggie Hackett Dillon, who was residing on the land as her homestead, and that no process had been served on her husband, Victor Dillon, who was residing with her on said lands as his homestead. That part of said pleading, asking leave to file a bill of review, alleged that since the rendition of the final decree petitioner had discovered that the allegations of the petition for partition were not true, and that at the time of its filing Curtis Hackett was the owner of a seven-tenths interest in the lands and, had this fact been made known to the Court, the Court would have held the forty acres to be susceptible of a partition in kind. There was a demurrer to the answer and petition and this demurrer was sustained by the Court. The motion for the writ of habere facias possessionem was also sustained and the writ was ordered to issue. From this action of the Court, the appellant, Margaret Hackett Dillon, appeals here.
There are only two questions that merit our consideration. (Hn 1) On the question of the necessity of process before the writ of assistance (which is the equivalent of the writ of habere facias possessionem at law) can issue it has long been the settled law of this state that no such process is necessary. Judge Griffith, in his Mississippi Chancery Practice, Section 651, on page 759, states the rule as follows: "But sometimes a defendant in possession, of real property refuses to surrender possession of it as adjudged by the court, in which case a writ of assistance, often called a writ of possession, is issued. Where by final decree all interest in the land is divested out of the defendant, a writ of possession, which is the equivalent of the writ of habere facias possessionem at law, may issue upon the petition of any party thereunto entitled against any party to the decree; and it issued of course without notice so far as the parties to the record are concerned, when necessary to put into execution the character of decree mentioned. And because the decree in the case has settled complainants' right to the land and as a consequence has settled the issue that the defendant has no right to refuse to deliver possession, wherefore the writ would issue as of course upon sworn application therefor without notice to defendant, it is allowable to insert in the final decree a provision for the writ of possession, and it is immaterial that the bill of complaint contained no special prayer to that effect; for no good could be accomplished by postponing the award of the writ until delivery of possession has been refused, and therefore, although it is not necessary so to do, a provision for it may be inserted in the final decree. The writ is issued by the clerk on sworn petition filed in the cause and upon proof if necessary of demand and refusal to surrender; and when the right is clear and no doubtful issues are apparent an order of the court or chancellor is not required. It is executed by the sheriff, as all such writs are executed. The writ issues out of the chancery court, not out of the supreme court, although the decree has been affirmed or there has been a final decree rendered in the supreme court."
As to the issuance of the writ without notice, Judge Griffith's text finds abundant support in Gardner v. Duncan, 104 Miss. 477, 61 So. 545. Neither is it necessary for the final decree to contain any provision for the issuance of the writ. Vicksburg M. Railroad Company v. McCutchen, 52 Miss. 645.
(Hn 2) But appellant argues that Victor Dillon, the husband, had a homestead interest in the land; that he was not a party to nor is he bound by the partition proceedings; and that his homestead is being taken from him without process upon him. This argument is wholly without merit. This Court held in Solomon v. Solomon, 187 Miss. 22, 192 So. 10, that where the wife of a tenant in common owning an undivided interest in land, occupies the land as a homestead, the occupation of the property by her does not enlarge her interest therein as against her husband's cotenants, but the land is at all times subject to partition by the cotenants. So here, Victor Dillon did not acquire any interest as against the cotenants of his wife. At all times, they had the right, if they so choose, to partite the land and Victor Dillon, the husband of Maggie Hackett Dillon, was not by reason of his occupancy of the land, either a necessary or proper party to the partition suit. Hence, there was no need for any service of process upon him.
Neither was there any error in the action of the lower court in sustaining the demurrer to the petition for a bill of review. Appellant attaches to his brief a copy of the deed from Zeb Hackett, Mary Hackett Dickerson, Tom Hackett, Minnie Hackett, Lewis Hackett, Mandy Hackett Campbell, and John Hackett conveying their undivided interests in the property to Curtis Hackett and asks our consideration of the deed. The deed is dated February 19, 1944 (five days after the petition for partition was sworn to) and John Hackett did not acknowledge it until March 3, 1944. The deed was filed for record December 12, 1945, and was on the public records of the county when the final decree in the partition suit was signed on December 15, 1945, and it was known to the Court and the Court considered the deed in adjudicating the respective interests of the parties in the proceeds of the sale of the land and awarded distribution in accordance therewith.
If the appellant intended her petition to be one for leave to file a bill of review for error apparent on the face of the record, no leave of Court was necessary to its filing. Griffith's Mississippi Chancery Practice, Section 635.
If the appellant intended his (Hn 3) petition to be one for leave to file a bill of review based upon newly-discovered evidence, then if we overlook the other defects in its form, it could in nowise be sustained because it is required as a fundamental that it must be shown by the facts that no want of reasonable diligence in discovering the evidence is to be imputed to the petitioner and all inferences of a want of diligence must be rebutted by a complete statement of facts in that regard. Griffith's Mississippi Chancery Practice, Sec. 637. (Hn 4) Here the alleged newly discovered evidence was known to the Court at the time the decree complained of was executed and was incorporated into the provisions of that decree.
We find no error in the decrees of the lower court and they will be affirmed.
Affirmed.