Opinion
No. 34544.
October 13, 1941. Suggestion of Error Overruled November 10, 1941.
1. MORTGAGES.
In equity, the only right or remedy of mortgagor or those claiming under him is to redeem land from mortgage indebtedness.
2. LIMITATION OF ACTIONS.
The rule that mortgagee cannot be deprived of possession of mortgaged property by mortgagor till the debt is paid is applied in cases where the debt secured by the mortgage is barred by statute of limitations.
3. LIMITATION OF ACTIONS.
An heir of a mortgagor cannot be permitted to stand by until mortgage debt is barred and then recover mortgaged property with accumulated rentals thereon from creditor who had, in good faith and for a fair price, purchased the property at foreclosure sale, and who was in peaceable possession thereof without being required to pay the debt.
4. MORTGAGES.
Where mortgagee was entitled to his debt, his payment of delinquent taxes and costs, and credit on the debt of remainder of his bid at foreclosure sale was sufficient "payment" of consideration (Code 1930, sec. 2315).
5. LIMITATION OF ACTIONS.
The statute providing that an action shall not be brought to recover any property hereafter sold by order of chancery court where the sale is in good faith and the purchase money paid unless brought within two years after possession taken by purchaser under such sale is "remedial" and designed especially to cure defects in probate sales by executors, administrators and guardians (Code 1930, sec. 2315).
6. LIMITATION OF ACTIONS.
Under statute providing that an action shall not be brought to recover any property sold by order of chancery court where the sale is in good faith and the purchase money paid unless brought within two years after possession taken by purchaser, heirs or other persons claiming derivatively from a decedent are subject to the rigid bar of the statute, regardless of whether they are parties to proceeding to foreclose mortgage against decedent's estate (Code 1930, sec. 2315).
7. LIMITATION OF ACTIONS. Mortgages.
Where mortgagor's widow as administratrix but not as heir was made party to mortgage foreclosure proceeding instituted in August, 1932, and mortgagor's adopted daughter who was not made a party advised administratrix regarding foreclosure matters and mortgagee purchased property at foreclosure sale in good faith and for a fair price, the widow and daughter were required to do equity and were within limitation prescribed by two-year statute and, therefore, could not successfully maintain suit instituted in December, 1938, to set aside the sale, to establish their title to property and for an accounting of rents and profits (Code 1930, secs. 1643, 1679, 1691, 2315).
ON SUGGESTION OF ERROR. (In Banc. Nov. 10, 1941.) [ 4 So.2d 494. No. 34544.]1. EQUITY.
It is proper, should the court so elect, to embrace in the body of a decree definite finding of the ultimate facts as to each litigated issue and when findings of fact are embodied in a decree, they become as much a part of the decree as any other feature of it and in consequence are as much entitled to the presumption of correctness as any other part.
2. EQUITY.
The effect of statute regarding findings of fact, when request for findings of fact has been duly made and finding by the chancellor has been entered of record, is to give the same status to the findings as if they had been incorporated in the recital part of the body of the decree with the consequence that findings so made of record carry the same presumption of correctness as any other part of the decree (Laws 1934, ch. 252).
3. APPEAL AND ERROR.
Where findings of fact have been made by chancellor upon request of parties and embodied in record as required by statute, Supreme Court on appeal must accept them as correct in absence of transcript of evidence (Laws 1934, ch. 252).
4. APPEAL AND ERROR.
An appeal may be taken from judgment even though a transcript of evidence is not included in record.
5. APPEAL AND ERROR. Judgment.
Where bill of review is filed for errors apparent on face of record, the entire record which includes the findings of fact, is examined without reference to the evidence and if there is error of law apparent on the face of the record and the error is such as to disclose that the decree, as made, is erroneous, the decree will be vacated and if the trial court should refuse to do so, an appeal may be taken to the Supreme Court.
6. JUDGMENT.
If a person submits himself to the jurisdiction of court and litigates throughout in any particular capacity, he will not be permitted after an adverse result to impeach the decree as to himself on the ground that his capacity was in fact different.
APPEAL from the chancery court of Simpson county, HON. D.C. ENOCHS, Special Chancellor.
Edwards Edwards, of Mendenhall, and R.C. Russell, of Magee, for appellant.
This suit was barred by the statute of limitations as contained in Section 2315 of the Mississippi Code of 1930.
See Charles H. Summer v. Mrs. M. Brady et al., 56 Miss. 10; Morgan v. Hazlehurst Lodge, 53 Miss. 665; Hall v. Wells, 54 Miss. 289 -300; Bradley v. Villireas, 66 Miss. 399, 6 So. 208; Foster v. Yazoo M.V.R. Co., 72 Miss. 886, 18 So. 380; Neely et al. v. Craig et al., 162 Miss. 712, 139 So. 835.
The appellee under the law and under all rules of equity should have been required to pay the debt secured by the mortgage on the property before she could have the sale set aside and the deed of the commissioner cancelled as prayed for in her bill.
Lucas et al. v. American Freehold Land Mortgage Co. of London, 72 Miss. 366, 16 So. 358; Wall v. Harris, 90 Miss. 671, 44 So. 36; Wirtz et al. v. Gordon et al., 187 Miss. 866, 184 So. 798.
Hilton Kendall and L.F. Easterling, both of Jackson, for appellee.
The two year statute of limitations does not apply because the sale was not in good faith.
Shannon v. Summers, 86 Miss. 619, 38 So. 345; Morgan et al. v. Hazlehurst Lodge et al., 53 Miss. 665; Holmes v. McGee, 64 Miss. 129, 8 So. 169.
The two year statute of limitations does not apply in this case, because the appellee was not made a party to the foreclosure proceedings, and the decree did not purport to affect her interests in any way.
See Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311; Mathews v. Jones (Miss.), 4 So. 547; Gibson v. Currier, 83 Miss. 234, 35 So. 315; Weisinger v. McGehee, 160 Miss. 424, 134 So. 148; Foster v. Gulf Coast Canning Co., 71 Miss. 624, 15 So. 931; Coleman v. Smith, 124 Miss. 604, 87 So. 7; Canton v. Ross, 157 Miss. 788, 128 So. 560; McCartney v. Kittrell, 55 Miss. 253; Lipscomb v. Postell, 38 Miss. 476; McPike v. Wells, 54 Miss. 136, 147.
The two year statute of limitations is not applicable because the purchase money was not paid. The debt secured by deed of trust became due on September 15, 1926, and in the absence of intervening circumstances, it would have been barred by the six year statute of limitations on September 15, 1932. The principal obligor, however, died on May 21, 1932, and under Section 2298, Code of 1930, the period before the bar of limitations became complete was extended for one year, or to May 21, 1933. This statute of limitations running against this debt was not interrupted by the probate of the appellant's claim against the estate of the deceased; therefore, when the sale was made on May 27, 1933, the debt had been effectively barred by the running of the statute.
The case of Pennington v. Purcell, 155 Miss. 554, 125 So. 79, holds that a creditor at a judicial sale, may make payment of the purchase price within the meaning of the short statute of limitations by applying a debt due him in payment of his bid, but it is, of course, apparent that the debt so applied must be a valid, present, and subsisting one. In the present case, the debt had been effectively barred by limitations before the date of the sale, and, therefore, no subsisting and valid obligation existed upon which the amount bid might be credited.
It is established both by statute (Section 2290, Code of 1930) and by decisions that when a mortgage indebtedness is barred by limitations, the right to resort to the security is also barred and, as decisive of this point, the case of McDaniel v. Short, 127 Miss. 520, 90 So. 186, establishes the rule that a purchaser under a void foreclosure sale, when the indebtedness was barred by the limitations at the time of the sale, does not occupy the position of a mortgagee in possession, and cannot compel the mortgagor to pay or tender the mortgage indebtedness as a condition precedent to regaining the property.
We, therefore, conceive that at the time of the sale of the land here in question, so far as the appellant and her interest in the property is concerned, any debt which had theretofore existed had become barred on May 21, 1933. Therefore, there was no debt upon which the purchase price could be applied, and, of course, the payment of the purchase price is an integral part of the two year statute. Unless the sale is made in good faith and the purchase money paid, this statute does not apply. The amount due for the purchase of the property could not be utilized as a credit against the indebtedness for the reason that, on the date of the sale, no valid indebtedness existed. And in connection with this, we call the court's attention to the fact that this point was decided in favor of the appellee in the court below.
The appellee in this case is not required to tender or pay the amount of the debt secured by the deed of trust. At the time of the sale of property, no valid debt existed and, therefore, there is no debt which the appellee can be required to tender.
There is a line of cases, among which are those cited by the appellant, which hold that a purchaser at a void foreclosure sale cannot be divested of the property without satisfaction of the debt for which the land was sold; in other words, the rule is, as stated in Wirtz et al. v. Gordon et al., 187 Miss. 866, 184 So. 798, and similar cases, that the only remedy of the mortgagor against a purchaser in possession under a void foreclosure sale is to redeem the land from the mortgage indebtedness.
The cases relied upon by the appellant are all cases in which a valid and subsisting obligation existed at the time of the foreclosure and to restore the purchaser or the mortgagor to his position at the time of the sale, in those cases, would be to restore to him a lien upon the land. In those cases, the statute of limitations expired after the foreclosure, and equity, therefore, required that the indebtedness on the land be tendered as a condition precedent to the redemption of the land from the void foreclosure sale. These cases cannot control here, and neither does the equitable doctrine relied upon by appellant, for in this case, at the time of the sale, no valid and subsisting obligation existed as a lien upon appellee's interest in the land. And note in this connection that this appellee was never personally liable for the indebtedness.
Therefore, as the reason for the rule does not exist in this case, the rule does not apply and, as appellant's indebtedness had been barred by limitations at the time of the sale, the appellee is not now called upon to tender or pay this indebtedness to him. Therefore, for this reason, we are of the firm conviction that there is no merit in this assignment of error, and in connection therewith, we refer the court to the cases of Dunn Construction Company v. Bourne, 172 Miss. 620, 159 So. 841; Potts v. Hinds, 57 Miss. 753; and Brown v. Goolsby, 34 Miss. 437, all of which have been heretofore cited in this brief, and all of which show that the running of the six year statute of limitations against the mortgage debt was not interrupted in so far as the appellee and her interest in this land is concerned.
There can be no doubt but that when the mortgage indebtedness is barred by limitations, the right to resort to the security is likewise barred. This is established by Section 2290 of the Code of 1930, and by the cases construing same, among which are Huntington v. Bobbitt, 46 Miss. 533; Maddux v. Jones, 51 Miss. 531; Musser v. First National Bank, 165 Miss. 873, 147 So. 783; Hembree et al. v. Johnson et al., 119 Miss. 204, 80 So. 554; Fulgham v. Burnett, 151 Miss. 111, 117 So. 514; Gates v. Chandler, 174 Miss. 515, 164 So. 442; and McDaniel v. Short, 127 Miss. 520, 90 So. 186.
Hilton Kendall and L.F. Easterling, for appellee, on suggestion of error.
The point we wish to stress here is that the court erred in proceeding to a decision of this cause on its merits for the reason that the evidence upon which the decision of the trial court rested was not available for the consideration of this court on appeal, the rule being, as we understand it, that the appellate court will presume all facts necessary to support a decree of the lower court when the evidence presented to the trial court is not made a part of the record on appeal.
Numerous cases hold, without apparent dissent, that every possible presumption is to be indulged in favor of the correctness and validity of a judgment of the Circuit or Chancery Court, and that any evidence that could have been introduced under the pleadings will be conclusively presumed to have been so introduced if necessary to support the judgment or decree.
See Reynolds v. Wilkinson, 119 Miss. 167, 81 So. 278; Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Tate v. Colvard, 174 Miss. 624, 165 So. 433.
In the case of Board of Supervisors v. Citizens Nat'l. Bank et al., 119 Miss. 165, 80 So. 530, the court stated: "A question depending upon the evidence for determination cannot be reviewed by this court, unless it has before it all of the evidence upon which it was decided in the court below, which fact must affirmatively appear from the record."
Falling squarely under this decision, the record in the instant case shows conclusively that the court had none of the evidence from the court below before it and it is apparent that the question decided depended upon the evidence for their determination. If this were not true the court would not have undertaken to outline such a lengthy statement of what purport to be the facts.
See, also, Jackson Opera House v. Cox, 188 Miss. 237, 192 So. 293; Brooks v. State, 178 Miss. 575, 173 So. 409; Stewart v. State, 179 Miss. 31, 174 So. 579; Berry v. Dampeer, 131 Miss. 893, 95 So. 744; Hicks Merc. Co. v. Musgrove, 108 Miss. 776, 67 So. 213; and G. S.I.R.R. v. Riley Merchantile Co., 139 Miss. 158, 104 So. 81.
Such, therefore, was the unquestioned and indisputable law when the state legislature convened in 1934. At this session the law was passed (Chapter 252, Laws of 1934) providing for a separate finding of fact and law by the various chancellors. It must be assumed that, in passing this act, the legislators gave due consideration to the then existing law, as announced by the reported cases, dealing with the failure to procure the transcription of the testimony in appeals to the Supreme Court. If it had been the purpose or intent of our lawmaking body to substitute the finding of fact by the chancellor for the transcript of the evidence, such a result could easily have been reached by the insertion of a few simple words in the act, and, as such was not done, it must be conclusively presumed that such a result was not deemed expedient or desirable by the legislature and that it was their intention to leave the general rule on this subject undisturbed.
Such, then, was the situation obtaining when on January 13, 1936, the court decided the case of General Tire Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420, in which case our court stated that the object and purpose of said Chapter 252, Laws of 1934, was to prevent concealment, in a general decree, of the grounds upon which the trial court reached its decision. The question of the effect of an appeal solely upon the chancellor's finding of fact was not then before the court but if the purpose of the law had been to authorize such appeals, and thereby entitle appellants to a consideration of the merits, surely such a fact would have been mentioned by the court — and it was not. Therefore, the general rule was not disturbed by this decision.
Therefore, we see that in the instant case, for the first time, the question of whether a consideration of the merits of any appeal could be had upon the chancellor's finding of fact alone was presented squarely to the court for determination — a novel question, and certainly one of importance to the bench and bar. And, if the long line of cases cited herein were to be followed, it must be held that such an appeal would not obtain to authorize a review of the merits of a controversy unless the court was prepared to engraft additions upon Chapter 252, Laws of 1934. In this state of affairs, the point, and we think it an important one, thus presented was completely ignored by the court's opinion. And not only was this question thus disregarded but the opinion itself failed to mention, even in passing, that this case was before the court on the chancellor's finding of fact alone and that the evidence was not available for its consideration.
Thus, the following result is reached: The precedent is not established that a consideration of the merits of a cause may be obtained by an appeal upon the chancellor's finding of fact alone; and left undisturbed are the numerous cases holding that a question which involves a consideration of the evidence will not be considered in the absence of the testimony. Yet, in its practical result, the decision in this case established the reverse of both propositions, although, of course, such rules do not become a part of the law of our state. We believe that the practical effect upon the court's opinion in this case is harmful, unsound and can result only in injustice. And, with what we hope is a pardonable obstinacy, we shall attempt to convince the court that our convictions are correct.
Argued orally by J.P. Edwards, for appellant, and by Jas. T. Kendall, for appellee.
On December 30, 1938, Mrs. Nannie Singletary, the widow, and Mrs. Tommie Singletary Massey, claiming to be the legally adopted daughter, with right of inheritance, of J.T. Singletary, deceased, and as his only heirs at law, filed a bill in the Chancery Court of Simpson County against Scott Hubbard and R.L. Everett, seeking to set aside a sale of a hotel in Magee, Mississippi, made May 27, 1933, under a deed of trust foreclosure proceeding in that court, and to establish title to the property in themselves, and for an accounting of rents and profits, the hotel having been purchased at the foreclosure sale by Hubbard, the mortgagee.
The bill charged that (1) the Singletary estate was not indebted to Hubbard at the time of the sale; (2) that the sale was void because fraudulent, and also because Mrs. Singletary and Mrs. Massey were not parties to the bill as individuals and heirs of J.T. Singletary; (3) that no consideration was paid by Hubbard; and (4) the publication by the commissioner of the notice of sale was insufficient in law.
Hubbard, in his answer, took issue on all of these propositions, and further set up that both complainants were estopped to bring the suit; that the suit was barred by section 2315, Code of 1930; that Mrs. Massey was not legally adopted and was not an heir of J.T. Singletary; that complainants, in no event, could maintain the suit without first tendering the debt, and, by a plea filed later, that the right to sue, if such right existed, was in the administratrix of the estate, and not in the complainants.
Everett adopted, in substance, the contentions of Hubbard, but made his answer a cross-bill against Hubbard for the purpose of settling other matters between them.
The Chancellor dismissed the bill as to Mrs. Singletary, but set aside the sale as to Mrs. Massey, holding that Mrs. Massey and Hubbard were tenants in common of, with equal rights in, the property, and that she was entitled to one half of the rents from, and chargeable with half of the taxes and improvements paid and made on, the property since the purchase by Hubbard, and appointed a master to state an account between them, which was done. From this decree Hubbard appeals and Mrs. Singletary cross-appeals, and Mrs. Massey cross-appeals from the confirmation of the report of the master. The issues between Hubbard and Everett were pretermitted for later hearing.
On September 5, 1925, Mr. and Mrs. Singletary executed a promissory note to Hubbard for $6,000, borrowed money, due September 15, 1926, and also a deed of trust on the hotel, the property of Mr. Singletary, to secure the payment of the note. Mr. Singletary operated the hotel, and he and Mr. Hubbard were close friends. There were a number of loan transactions between them from that time to the date of the death of Mr. Singletary, intestate, May 21, 1932.
Mrs. Singletary was appointed administratrix of his estate. On her report the court, by decree, declared the estate insolvent, and the administratrix took charge of the hotel as part of the administration. She lived in and operated it for seven months, losing money, and then, by authority of the court, rented it out for fifty dollars per month. The court allowed the widow $1,200 for a year's support, and made this a charge against the hotel property, and also authorized and directed her to carry insurance on the hotel, and to borrow money thereon, if she could, with which to pay taxes and insurance premiums, which apparently she was unable to do. This situation continued until Hubbard took possession under his purchase at the foreclosure sale.
On August 24, 1932, Hubbard filed a bill in said Chancery Court to foreclose his deed of trust, making Mrs. Singletary defendant as administratrix, but not as maker of the note or as heir of Singletary; nor was Mrs. Massey made a defendant. Hubbard was acquainted with Mrs. Massey, but he did not know there had been an adoption proceeding. The administratrix answered the bill, and the court adjudicated that the "estate" of J.T. Singletary was indebted to Hubbard in the sum of $4,000 and $400 attorney's fees, all evidenced by, and included in, the foregoing note, and secured by said deed of trust; and that Hubbard held a valid and enforceable lien on said hotel to secure these amounts, and was entitled to have the property sold under such lien; appointed a commissioner and directed him to sell the property, and out of the proceeds first to pay the court costs; then to pay Hubbard $4,400 "in event so much is realized at said sale . . ." But, "by agreement of all parties to said suit that said commissioner shall not sell said land hereinabove described till after the expiration of twelve months from the date of this decree, unless by a decree of this court previously ordered on the administration of said estate and the said Scott Hubbard . . ."
About May 11, 1933, it was discovered that the time for redeeming this hotel from previous tax sales would expire June 7, 1933, and, if not redeemed, Hubbard would lose his security and the estate its equity, if any, in the property. Hubbard, by petition, made this known to the Chancellor. Notice was given to the administratrix, and by agreement of all parties the court ordered the commissioner to proceed immediately with the sale of the property, which he did, the sale taking place May 27, 1933. The commissioner reported the sale to the court. The administratrix filed an answer, and there appears to have been an issue (1) whether the furniture, fixtures, etc., in the hotel were included in the trust deed, and (2) whether a fair and reasonable price had been bid for the property. The court held that the furniture, fixtures, etc., were not included in the trust deed, but that the bid of Hubbard of $4,400 and the payment "of all taxes now due on said property, . . ." was a fair price, and ordered the commissioner to execute a deed to Hubbard upon his complying with his bid.
Hubbard paid some $1,700 in back taxes, the fees and costs, and credited the debt with the balance of his bid.
It might be stated here that no contention is made on this appeal that the sale was invalid because of the length of time it was advertised.
Hubbard took charge of the property as owner thereof, and has used and operated it, making improvements thereon, until this time.
June 14, 1932, the Chancery Court of that county removed generally the disability of minority of Mrs. Massey, and she became of age by nature about December, 1934.
Mrs. Singletary and Mrs. Massey, before and since the foreclosure, have resided in Magee, where the property is located, and have had full knowledge of the purchase, possession and use of the hotel by Hubbard. Mrs. Massey accompanied Mrs. Singletary to the trial of the foreclosure issues and advised with her on these matters.
In August, 1938, Mrs. Singletary learned of an agreement between Hubbard and Everett and one Jones, dated November 16, 1932, undertaking to adjust and settle their respective claims with each other, and which dealt with their claims against the Singletary estate. She conceived the idea that this resulted in some fraud being practiced in the foreclosure proceedings, and thereupon the present bill was filed. The Chancellor correctly found that neither in its nature nor in its result was this contract a fraud on the rights of the complainants.
Since the estate had been declared insolvent, and the real property was in the possession of the administratrix, and she was a party to the foreclosure proceeding contesting the debt and the lien on the property, as was her right and duty under section 1679, Code 1930, it is very doubtful whether the statute of limitation was operative during the pendency of this litigation, in view of section 1643, Code of 1930, charging the lands of decedent with his debts if the personalty is insufficient to pay them, and section 1691, said Code, empowering the administrator, upon authority of the Chancery Court, to sell the land for such purpose, although it is not necessary for us to decide that question. Bell v. Clark, 71 Miss. 603, 14 So. 318; Matthews v. Matthews, 66 Miss. 239, 6 So. 201. But whether barred at law or not, this Court has uniformly held that in equity "the only right or remedy of the mortgagor or those claiming under him is to redeem the land from the mortgage indebtedness." Wirtz v. Gordon et al., 187 Miss. 866, 184 So. 798, 802, 192 So. 29. The Court in the Wirtz case further said: "This rule, that the mortgagee cannot be deprived of possession by the mortgagor till the debt is paid is applied in cases where the debt secured by the mortgage is barred by the statute of limitations."
In Wall v. Harris, 90 Miss. 671, 44 So. 36, this language was used: "It would shock the conscience of a court if this beneficiary in peaceable possession should be required to give up the land and appellants be permitted to hold to that, and yet to avoid payment of the debt." See Lucas et al. v. American Freehold Land Mtg. Co., 72 Miss. 366, 16 So. 358; Nash v. Smith, 133 Miss. 1, 96 So. 516. It would indeed be a travesty on justice to permit an heir of a mortgagor to stand by until the mortgage debt was barred and then recover the mortgaged property, which accumulated rentals thereon, from the creditor who had, in good faith and for a fair price, purchased the property at the foreclosure sale, and who was in peaceable possession thereof, without being required to pay the debt. Other authorities on this point are cited in the able opinion in the Wirtz case.
Hubbard being entitled to his debt, his payment of delinquent taxes and costs, and credit on the debt of the remainder of his bid, was a payment of the consideration under section 2315. But it is said that Mrs. Singletary and Mrs. Massey were not parties to the foreclosure proceeding, and for that reason are not within the bar of the two-year statute prescribed by section 2315, which reads: "An action shall not be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith and the purchase-money paid, unless brought within two years after possession taken by the purchaser under such sale of the property."
Under the circumstances here they did not have to be parties.
In Morgan v. Hazlehurst Lodge, 53 Miss. 665, quoted in Pennington v. Purcell, 155 Miss. 554, 567, 125 So. 79, 83, the Court, after saying the statute is remedial and designed especially to cure defects in probate sales by executors, administrators and guardians, further said: "The statute proposed to cure the evil by applying a short limitation where the sale was free from fraud, and the purchaser in good faith had paid his money; so that if the purchaser lost his land, he might indemnify himself in some mode or other. The heir, or other person claiming derivatively from the decedent, if he relies on the invalidity of the sale as the ground of recovery, must bring his action to recover the property within one year [now two years] . . . The statute, in effect, says to such claimants [heirs of decedent], `You shall not recover the property' on the ground of the invalidity of the sale, if, in fact, it was made in good faith and the purchase-money has been paid, unless you bring suit . . ." within the time specified in the statute. "The statute is remedial and curative, has its origin in that policy, and, if the words will admit of it, should receive that construction which will accomplish the end aimed at."
In Neely et al. v. Craig et al., 162 Miss. 712, 139 So. 835, 837, the Court said the Lodge case, supra, held "that the statute was meant to cure all defects in the probate sale, no matter from what cause, whether before or after the decree, unless the heir brought his action within the prescribed time." In Summers v. Brady, 56 Miss. 10, the Court held that heirs of an ancestor whose land had been sold by an administrator under an order of the Chancery Court, were within the statute even though notice was not given them, and this includes minors and married women. See Hall v. Wells, 54 Miss. 289. In other words, the heir or other person claiming derivatively from the decedent are subject to the rigid bar of the statute, whether parties to the foreclosure proceeding or not. Pennington v. Purcell, 155 Miss. 554, 556, 125 So. 79.
The court had jurisdiction of the subject matter. Mrs. Singletary and Mrs. Massey are within the equitable principle, "He who seeks equity must do equity," and are within the limitation prescribed by section 23-15.
Reversed on direct appeal, and judgment here for appellant Hubbard; dismissed on cross-appeals. Remanded for adjudication of issues between Hubbard and Everett.
Smith, C.J., concurs in the result.
In arriving at and rendering our original opinion we relied in a large part upon the findings of fact made by the chancellor upon request of the parties and embodied in the record, as required by statute. Appellant did not give the notice to the court reporter to transcribe the notes of the evidence, and there is in the record no transcript of the evidence. Appellee again urges the contention that in the absence of the transcript of the evidence we cannot look to the findings of fact made and filed by the chancellor, but must presume that the evidence, if before us, would support the general decree rather than the chancellor's finding upon the facts which forms the basis of his general decree. In this appellee is mistaken, and because there is thus presented a procedural matter of importance in view of the new statute, we respond to the point.
When equity and equity procedure became by adoption a part of the jurisprudence of this country, the body of the decree consisted of five parts, one of which was the recital part, in which it was required that the leading facts upon which the decree rests should be set forth therein. 19 Am. Jur., p. 285; Handy v. Cobb, 44 Miss. 699, 702; 21 C.J., p. 656. In the course of time it became the rule in most of the states, including our own, that the recital part might be largely omitted, but this has been merely permissive and it has nevertheless remained in the rule that it is proper, should the court so elect, to embrace in the body of the decree a definite finding of the ultimate facts as to each litigated issue or salient point of fact; and although such elaborated decrees are not now ordinarily seen, they are yet so often used in this state as to disclose that they are still a recognized part of our practice in equity cases. And when such findings of facts are embodied in a decree, they become, of course, as much a part of the decree as any other feature of it, and in consequence are as much entitled to the presumption of correctness as any other part.
It was because of the frequent omission of what, under the traditional practice, was required to be embraced in the recital part of the decree that Chap. 252, Laws 1934, was enacted. See General Tire Rubber Co. v. Cooper, 176 Miss. 491, 165 So. 420, 169 So. 801. The effect of that statute, when the request for the finding of facts has been duly made and such finding by the chancellor has been entered of record, is to give the same status to the findings as if they had been incorporated in the recital part of the body of the decree, with the consequence that the findings so made of record carry the same presumption of correctness; and we must accept them as such on appeal in the absence of the transcript of the evidence. And it is far too late to contend that an appeal may not be taken unless a transcript of the evidence is included in the record. See, for instance, Redmond v. City of McComb, 192 Miss. 61, 4 So.2d 494, this day decided.
We have not overlooked the argument by appellee that only ten days after the adjournment of court is allowed to give the notice to the court reporter to transcribe the notes of the evidence; that during that time the succesful party in the trial court will not know whether the loser will appeal at all and when the latter allows the ten days to go by without notice of appeal or notice to the court reporter, and thereafter takes an appeal without a transcript of the evidence, the appellee is thereby deprived of whatever advantage the evidence might afford him on the appeal.
Suppose the findings of fact had been actually embraced in the body of the decree and appellant had appealed without a transcript of the evidence — the appellee would be confronted with the same situation. Or suppose that instead of appealing the losing party had filed within two years a bill of review for errors 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 such as to disclose that the decree, as made, 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. Denson v. Denson, 33 Miss. 560, 563; Gilleylen v. Martin, 73 Miss. 695, 698, 19 So. 482. In Enochs v. Harrelson, 57 Miss. 465, 468, it is stated that when upon a bill of review and an examination of the record — which never includes an examination or consideration of the evidence — there is found to be error apparent, the original decree will be set aside and thereupon the decree which should have been rendered at first may be rendered without further proceedings, unless there be shown some good reason against that course. We suppose it will hardly be contended that the powers and duties of this Court as to what shall be done upon the record on appeal are any less than what the trial court could and should do upon the same record under a bill of review, or any less than what we could and should do upon an appeal from a decree rendered under a bill of review. In such cases the record of the evidence is not before the court; appeals may be taken without a transcript of the evidence; and if in these matters the law is defective, that is for the legislative department to remedy.
Appellee again urges the vital point and its several material bearings that Mrs. Singletary was not a party to the foreclosure proceedings in her individual capacity, as she should have been, but was made a party only as administratrix. She nevertheless answered in the case, took an active part as a litigant therein, making then no point that she should have been sued in a different capacity, and we now adopt the language found at page 149, Miss. Chan. Prac., that "if a person submits himself to the jurisdiction of the court and litigates throughout in any particular capacity, he will not be permitted after an adverse result to impeach the decree as to himself on the ground that his capacity was in fact different."
Suggestion of error overruled.