Opinion
No. 30349.
January 30, 1933.
1. EQUITY.
Chancery court acquired jurisdiction of attachment suit where defendant did not plead specially to court's jurisdiction but defended generally (Code 1930, section 173).
2. EXECUTORS AND ADMINISTRATORS. Certificate of Alabama probate judge showing appointment of administratrix de bonis non held sufficient to authorize such administratrix to file attachment suit in Mississippi ( Code 1930, section 1586).
The letters de bonis non certified by probate court of proper county in Alabama recited that complainant was administratrix de bonis non of the decedent's estate, and was duly qualified and acting administratrix of said estate, and was liable to account to such probate court for any property or money coming into her hands as result of claim pending against defendant railroad for dividends or stock in such railroad standing in decedent's name, or for any other property or money which she might receive as administratrix de bonis non of the estate. Such certificate further authorized administratrix de bonis non to execute release for such stock or money when received by her.
3. EXECUTORS AND ADMINISTRATORS.
That certificate of probate court of sister state appointing administratrix de bonis non did not comply with federal statute held not to preclude this state from giving effect thereto (Code 1930, section 1586; 28 U.S.C.A., section 687; Constitution United States, article 4, section 1).
4. ESTOPPEL.
Railroad having induced complainant to take out letters of administration de bonis non in Alabama for purpose of collecting dividends and acquiring possession of stock in decedent's name held estopped from contending that such proceeding was void.
5. EXECUTORS AND ADMINISTRATORS.
Chancery court held to have jurisdiction of attachment suit by administratrix de bonis non against railroad to recover dividends and possession of stock alleged to belong to decedent.
6. EXECUTORS AND ADMINISTRATORS. Attachment suit by administratrix de bonis non to recover dividends on railroad stock declared since 1898 and possession of stock held not barred by laches.
The suit was not barred by laches because no dividends were declared until 1898, which was four years after stockholder's death, and there was no showing that complainant and other heirs of deceased stockholder knew of their rights to dividends or of decedent's ownership of the stock until just before suit was brought, and nothing occurred entitling railroad to take and keep dividends against demand of stockholder, his administrators or heirs, and deceased stockholder's administratrix, not finding stock in decedent's effects, and not knowing of its existence, was not negligent in failing to discover its existence.
7. EQUITY. "Laches" is not mere delay, but delay working disadvantage to another.
So long as parties are in same condition, it matters little whether one presses right promptly or slowly within limits allowed by law.
8. LIMITATION OF ACTIONS.
Limitations against deceased person, in cases of trust, operate only from time administrator knows of rights under trust.
APPEAL from chancery court of Lauderdale county. HON. A.B. AMIS, Chancellor.
Wilbourn, Miller Wilbourn, of Meridian, and Carl Fox, of St. Louis, Missouri, for appellant.
The petition of Mrs. Dillon Swain for letters of administration de bonis non, and the decree of the probate court of Sumter county, Alabama, granting the letters, and the bond of the administratrix de bonis non, and the letters of administration de bonis non, and the certificate of P.B. Jarman, Judge of the probate court, Sumter county, Alabama, were not certified according to law.
Section 905, of the United States Revised Statutes; Section 1723 of the Mississippi Code of 1930.
Such letters (letters of administration like the records of all courts in other states), are admissible in the courts of this state only when authenticated according to the Federal Statutes, there being no legislation in this state upon the subject.
Hope v. Hurt, 59 Miss. 174.
Compare section 2091 of the Code of 1880 with section 1723 and section 1586 of the Code of 1930, and it will be found that section 2091 of the Code of 1880 covers both sections 1723 and 1586 of the Code of 1930.
Section 1723, Code of 1930, provides how foreign executor or administrator may sue in this state; section 1586, Code of 1930, provides how certified copies of appointment of foreign administrators shall be admitted in evidence.
The latter portion of section 2091 of the Code of 1880, which was in force at the time of the decision in Hope v. Hurt, 59 Miss. 174, is almost in the exact words as section 1586, of the Code of 1930.
Appellee has not complied with section 1586 of the Code of 1930, for the reason that such section which provides that, "a duly certified copy of the record of appointment and qualification of executor, administrator — in the territories, District of Columbia or in foreign countries according to the laws thereof — shall be evidence, etc.," does not state by whom it shall be duly certified.
It is settled law in Alabama that where there has been an administration on an estate and a final settlement and a decree discharging the administrator, after the lapse of the term at which the decree was rendered, the probate court has no power to set aside the decree or to reopen the administration, and the issuance thereafter of second letters of administration, or of letters of administration de bonis non, is void.
Hickey v. Stallworth, 143 Ala. 535, 39 So. 267; Medley et al. v. Shipes et al., 177 Ala. 944, 58 So. 304.
The Mobile and Ohio Railroad Company is not such a non-resident of the state of Mississippi, and is not absent or absconding therefrom as comes within the meaning of the laws of Mississippi providing for attachments in chancery.
The declaration of a dividend by a corporation creates a debt against it and in favor of the stockholders — a debtor and creditor relationship being established between the corporation and each of its stockholders. And, if the dividend has not been merely declared, but the fund for its payment has been actually set aside and distinguished from the general mass of the company's funds, the fund so set aside becomes a trust fund for the payment of the dividend, which cannot be reached by the general creditors of the corporation, and when it becomes a trust fund for the payment of dividends, it cannot be diverted and used for any other purpose.
Interborough Consolidated Corporation, Bankrupt, 288 Fed. 334, 32 A.L.R. 932.
Laches bars the claim of a stockholder for his part of dividend alleged to have been withheld from him but paid to other stockholders.
Foss v. Peoples Gas Light Coke Company, 241 Ill. 238, 89 N.E. 351.
A delay of more than ten years in bringing suit for dividends and beyond the time limited by statute for bringing an action at law, constitutes such laches, prima facie, as will bar relief in equity.
Citizen's Savings Trust Company v. Belleville S.I.R. Company, 157 Fed. 73.
The liability of an incorporated company to pay the dividends on certain shares owned by the plaintiff is not such a trust as will take the case out of the statute of limitations.
Kane v. Bloodgood, 11 Amer. Dec. 417.
Courts of equity refuse relief, because of laches, on account of the injustice of imposing on defendant the proof of transactions long past to protect rights for a long time unchallenged by his adversary, with full knowledge of the circumstances.
Abraham v. Ordway, 39 L.Ed. 1036.
The generally accepted doctrine appears to be that laches is not like limitation a mere matter of time, but is principally a question of the inequity of permitting a claim to be enforced, this inequity being founded on some change in the condition or relations of the property or the parties. Since lapse of time has a tendency to obscure evidence, and often makes it impossible to discover the truth, it is, of course, one of the elements to be considered by the court in applying laches to stale claims, but it is only one, and while important, it is not ordinarily the controlling or most important one. Hence, it has been said, laches in legal significance, is not mere delay, but delay that works a disadvantage to another.
10 R.C.L., page 396; Comans v. Tapley, 101 Miss. 203, 57 So. 567.
While there is some authority to the contrary, it is very generally held that an admission, in order to constitute an estoppel, must relate to a matter of fact, and a person will not be estopped by an admission as to the law. A fortiori, the expression of opinion by one of the parties on a question of law where both parties have full knowledge of the facts, cannot create an estoppel.
North Avenue Building Loan Ass'n v. Huber, 121 N.E. 726; Estis v. Jackson, 32 Am. St. 784; 16 Cyc., page 756, par. B; 21 C.J., page 1147, par. 51; Ward v. Ward, 131 Fed. 946; McKees v. Maughton, 26 P. 354.
No estoppel arises where the representation or conduct of the party sought to be estopped is due to ignorance founded upon an innocent mistake. And while there is authority to the contrary, the weight of authority is that the acts and declarations of a party based upon an innocent mistake as to his legal rights will not estop him to assert the same, especially where every fact known to the party sought to be estopped is equally well known to the party setting up the estoppel.
21 C.J., page 1125, par. 128.
It can seldom happen that a statement of opinion or of a proposition of law will conclude the party making it from denying its correctness.
Bigelow on Estoppel (6 Ed.), page 634.
Estoppel cannot validate that which is absolutely invalid under state law.
Joy v. Godchaux, 35 F.2d 649.
J.C. Floyd, of Meridian, for appellee.
At the time the decision was rendered in Hope v. Hurt, 59 Miss. 174, section 1586 of the Code of 1930 was not in existence but was first enacted into law in Mississippi as section 1787 of the Mississippi Code of 1892.
It is too well settled to admit of argument that the Federal statute, section 905, is exclusive only when there is no state legislature on the subject.
Gubble v. Pioneer Press Company, 15 Fed. 689; Petty v. Hayden, 88 N.W. 339; Tomlin v. Woods, 101 N.W. 135; Willook v. Wilson, 59 N.E. 757; Wells v. Davis, 12 N.E. 42; Title Guaranty, etc., v. Trenton Pottery Co., 38 A. 422; Otto v. Trump, 8 A. 786.
The overwhelming weight of authority is to the effect that if the record of another state is offered in evidence and the certification or authentication complies with the Federal statute, then no matter what the laws of the state may be, it must be admitted, but if the state has a law lessening the requirements as set forth in section 905, the record can be admitted under the state statute of less formality or strictness.
Black v. Shaffer, 142 Pa. 456; Sullivan v. Kenney, 126 N.W. 349; Richie v. Carpenter, 28 Pa. 380; In re Peterson, 134 N.W. 751.
Our state may prescribe lesser methods of authentication than is prescribed by the Federal statute, and our Legislature has done so by the enactment of 1586 of the Code of 1930.
Where certain tariff rules of the Interstate Commerce Commission were admitted in evidence over appellee's objection because they were not certified under section 906 of the Revised Statutes of the United States, our court held that since Mississippi has a statute prescribing the method of authentication, to-wit, section 1583 of the Code of 1930, that the records as certified were competent evidence.
M. O.R.R. Co. v. Jenson, 139 So. 840, 162 Miss. 741.
Foreign corporations, although domesticated, are nonresidents within the meaning of our attachment laws.
Central Western Development Company v. Lewis, 142 Miss. 428, 107 So. 557; Clark v. L. N. Railroad Company, 158 Miss. 287, 130 So. 302.
If the attachment was wrongfully obtained, appellant's remedy was a motion to quash the attachment.
Griffith's Chancery Practice, 517, section 484; Advance Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 So. 313.
Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another, so long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief.
Comans v. Tapley, 101 Miss. 203, 57 So. 567.
The correspondence from the officials of the Mobile Ohio to the heirs of B.A. Simmons, or their counsel, should serve to reinstate the claim and take it out of the operation of any rule of limitation or laches, even if any such rule even began to operate.
Prince v. Childs, 23 F.2d 605.
Mere lapse of time does not constitute laches. In addition it must appear that something has occurred that would make it inequitable to grant the relief prayed for.
Moore-McCord Co. v. Renny, 29 F.2d 383.
If a person by his conduct induces another to believe in the existence of a particular state of facts, and the other acts thereon to his prejudice, the former is estopped, as against the latter, to deny that that state of facts does in truth, exist.
21 C.J., page 1060, sec. 2.
Estoppel operates only in favor of one who, in reliance upon the act, representation, or silence of another, so changes his situation as that injury would result.
Hart v. Foundry Co., 72 Miss. 809, 830, 17 So. 769; Hausenstein v. Gillespie, 73 Miss. 742, 19 So. 673, 55 Am. St. Rep. 569.
The attack here on the appointment of the administratrix is a collateral attack and every presumption in favor of the validity is to be assumed.
Henley v. Johnson, 32 So. 1009; Smith v. Smith, 103 So. 557; Beasley v. Howell, 22 So. 988; Smith v. Alexander, 42 So. 29; Ashurst v. Union Bank Trust Co., 76 So. 917.
Argued orally by C.C. Miller, for appellant, and by J.C. Floyd, for appellee.
In May, 1859, B.A. Simmons acquired five shares of stock of the Mobile Ohio Railroad Company, which stock has never been transferred on the books of said company, and on which, prior to 1898, no dividend has accrued. B.A. Simmons departed this life in 1894; his estate was administered on by his wife as administratrix, she being finally discharged in 1896. At the time of the death of B.A. Simmons, and during the administration of his estate, no evidence of the ownership of said stock was discovered by said administratrix, and the stock was not embraced in the administration of his estate.
Some time before the bringing of this suit, a grandson of B.A. Simmons, in going through some of his papers and effects, found some indicia of the ownership or existence of said stock, reported same to his aunt, Mrs. Dillon Swain, and correspondence was entered into with the Mobile Ohio Railroad Company, whereupon it was discovered that the stock issued to B.A. Simmons was still standing in his name on the company's books, and that dividends, amounting to eight hundred and ten dollars, had accrued thereon. In this correspondence, the Mobile Ohio Railroad Company referred the appellee and her attorney to their attorneys in Meridian, Miss., and the matter was taken up with them, and they wrote the attorney for the appellee that they did not believe any court in Mississippi had jurisdiction of the suit; that the situs of the stock was in Alabama; that B.A. Simmons had died in Alabama, and suggested that the administration of B.A. Simmons' estate be reopened, or that administration de bonis non be taken out on said estate.
Accordingly, Mrs. Dillon Swain applied to the probate judge of Sumter county, Alabama, where said B.A. Simmons died, and where his daughter, the administratrix de bonis non, lived, and letters de bonis non were issued to her by the probate court of said county. These letters de bonis non were certified to by the probate judge of that county as follows: "That Mrs. Dillon Swain, administratrix de bonis non, of the estate of B.A. Simmons, deceased, is the duly qualified and acting administratrix of said estate of B.A. Simmons, deceased, and . . . is liable to account to this court for any property or money which may come into her hands as a result of a claim or claims now pending against the Mobile and Ohio Railroad Company for certain dividends and/or stock in the said Mobile and Ohio Railroad Company, standing in the name of B.A. Simmons, or any other property or money which she may receive as administratrix de bonis non of said estate. And the said Mrs. Dillon Swain, administratrix de bonis non of said estate, is authorized by the laws of Alabama and this court to execute a full and complete release for said stock and/or money when received by her."
The present suit, an attachment suit, was filed in the chancery court of Lauderdale county, Miss., alleging that the Mobile Ohio Railroad Company had agents there, and certain corporations there were alleged to be indebted to said railroad company. Process was served upon all of said defendants, including the garnishee defendants, which latter answered the bill, two of the garnishees admitting that they had money or effects in their hands belonging to the principal defendant, the railroad company. The railroad company answered, admitting that said shares of stock were standing on its books in the name of B.A. Simmons, and that there were no transfers of said stock on its books, and that dividends had accrued thereon in the amount alleged in the declaration; but denying that the appellee is the administratrix de bonis non of the estate of B.A. Simmons, and disclaimed any knowledge of whether the B.A. Simmons on whose estate administration de bonis non was being had was the same B.A. Simmons to whose credit the shares of stock stood upon its books. It also denied that it was such a nonresident defendant as would authorize an attachment in chancery against it, and set up that the complainants were barred from recovery by reason of laches, and also set up by a supplemental answer, filed after the principal answer, that B.A. Simmons' estate had been administered on in 1894, and that the administratrix was, in 1896, discharged and the administration had been closed, and that no administration de bonis non was thereafter permissible on said estate, and filed with its supplemental answer certified copies of the proceedings in the original administration of the estate of B.A. Simmons in Sumter county, Alabama.
On the hearing, the court below held that the certification of the probate judge of Sumter county, Alabama, was in conformity with section 1586, Code 1930, but it was not in conformity with the requirements of section 905 of the Revised Statutes of the United States (28 U.S.C.A., section 687). The court further held that compliance with section 1586, Code 1930, authorized the administratrix de bonis non to sue in this state, and that, the state having authorized a foreign administratrix to sue on the conditions named in said section, the matter of failure to comply with the Federal statute above mentioned is immaterial and was unnecessary; and that the defendant, having suggested in a letter to the complainant the steps necessary to be taken for the collection of the dividend and the possession of the stock from the Mobile Ohio Railroad Company, is now estopped from raising the question of validity of the proceedings, or the sufficiency of them to authorize a suit.
It appears that the Mobile Ohio Railroad Company was originally incorporated under the laws of Alabama, and that subsequently it was incorporated by a special act of the Legislature of the state of Mississippi and other states through which the line of railroad ran from Mobile, Alabama, to the Ohio river.
The attachment is against the Mobile Ohio Railroad, an Alabama corporation, and the proceedings were instituted in conformity to the laws of Mississippi, as announced in Clark v. L. N.R.R. Co., 158 Miss. 287, 130 So. 302. See C.W.D. Co. v. Lewis, 142 Miss. 428, 107 So. 557. Furthermore, the defendant did not plead specially to the jurisdiction of the court on this ground, but defended generally, and the court acquired jurisdiction of the person. See Code 1930, section 173; Hall Commission Co. v. Foote, 90 Miss. 422, 43 So. 676; Branham v. Drew Groc. Co., 145 Miss. 657, 111 So. 155.
We are of opinion that the certificate of the probate judge of Sumter county, Alabama, is sufficient, under section 1586, Code 1930, to authorize the filing of the suit at bar by Mrs. Swain, or to sue in behalf of said estate. The provisions of section 905 of the Revised Statutes of the United States (28 U.S.C.A., section 687), provide for proceedings to evidence the force and effect of a state action under the due faith and credit clause of the Federa Constitution, and are binding on a state when the provisions of that section are complied with. In such a case, a state must give due credit and faith to the proceedings of a foreign state, as provided for in that act. It is compulsory upon the state authorities to accept such a certificate, and to give full faith and credit to proceedings in another state where such proceedings were had.
A state, however, may provide for giving effect to foreign proceedings without conforming, in all particulars, to the Federal act. In other words, a state court can permit a foreign administrator, executor, or guardian, to sue in its courts whether such guardian, administrator, or executor be certified in conformity to the Federal act, provided it conforms to its own laws, and the certification is sufficient to make it presumptive of regularity. It is probably true that, where the Federal statute is not followed, the authenticity of the regularity of the proceedings in a foreign state might be inquired into.
Section 1586, Code 1930, is a sufficient safeguard against unauthorized suits by persons claiming to act under the authority of foreign states. This section first appeared in the Annotated Code of 1892 (section 1787). It is true that, prior to that time, this court had held in Hope v. Hurt, 59 Miss. 174, that section 2091, Rev. Code of 1880, did not dispense with the requirements of the Federal statute, section 905 of the Revised Statutes of the United States (28 U.S.C.A., section 687). That case, of course, is not authority in the case at bar, because the new statute has come into play, making a specific provision which has been complied with.
The probate court of Alabama, under the laws of that state, having certified that the administratrix de bonis non was entitled to give acquittances for dividends and stock to be given her by the Mobile Ohio Railroad Company, or any other claims which might be owing to the estate of B.A. Simmons, she to be accountable to the probate court of Alabama for all money and stock so received, said administratrix de bonis non is fully qualified to so act.
We do not think we are called upon to explore the decisions and statutes of Alabama to find out whether the probate judge was in error or not.
We think the chancellor was right in holding that the defendant, having induced the complainant to take out letters of administration de bonis non in Sumter county, Alabama, and complainant having pursued that course, is now estopped to contend that such proceeding, so taken at the defendant's instance, is void.
It is undisputed that the Mobile Ohio Railroad Company has in its possession and under its control dividends on, and evidences of the existence of, stock for which it is liable to some one.
As stated, this suit was filed in the chancery court, and the chancery court is able to adjudicate the rights and protect the interests of all parties involved. We are therefore of the opinion, that the chancery court had jurisdiction to entertain the cause of action.
It is insisted that the complainants were guilty of laches. We do not think the complainants are barred by laches under the facts in this record. There were no dividends declared until 1898, and we do not think there is anything to show that the complainants knew of their rights to this dividend until recently just before this suit was brought. The railroad company declared the dividend, and, although it may not have had a record of the addresses of its stockholders, yet we do not think there was any serious effort to locate the owner of this stock. The railroad company was holding the dividend in trust for the stockholder, and there was nothing that occurred that entitled it to take and keep this dividend against the demand of the stockholder, its administrators or heirs.
As said in the case of Comans v. Tapley, 101 Miss. 203, 57 So. 567, 573, Ann. Cas. 1914B, 307: "Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side and injury therefrom on the other it is a ground for denial of relief."
We fail to see how the delay of the administratrix de bonis non injured the railroad company. It is a general rule that the statute of limitations in cases of trust against a deceased person would only operate from the time the administrator knew of the rights under the trust.
It is quite probable that B.A. Simmons, in his lifetime, having, for a long time, received no dividends on the stock, did not take care to preserve it, as he would have done had there been any dividends. The dividend accrued after his death, and his administratrix, not finding the stock in his effects, and not knowing of its existence of course, was not negligent in discovering its existence under the facts contained in this record.
We find no reversible error in the record, and the judgment of the court below is affirmed.
Affirmed.