Rigby v. Lefevre , 58 Miss. 639 ( 1881 )

Cooper, J.,

delivered the opinion of the court.

This is an action of ejectment brought by the appellees to-recover possession of certain lands which had descended to-them from their father, Hal W. Green, who died in the year-1858. The lands had descended to Hal W. Green from his mother, encumbered by a mortgage executed by her to secure a debt to Thomas Rigby, the husband of one of the apppellants. On the thirty-first day of May, 1859, Thomas Rigby filed-his bill in the Chancery Court of Warren County against James-C. Newman, administrator' of Hal W. Green, Fanny C-Green, widow, and the appellees, the heirs-at-law of Hal W. Green, for the purppse of subjecting the lands to sale for the payment of his mortgage debt. A subpoena was issued directing the sheriff to summon the defendants, which was returned indorsed by the sheriff as follows : “ Executed, and copies of' the within writ delivered to James C. Newman, administrator, and Fanny C. Green.” A guardian ad litem was appointed for-the appellees, who were minors, and a decree was rendered on the twenty-first day of January, 1860, directing the land to be-sold for the payment of the debt due Rigby, in which decree-it was recited that an agreement had been made between the mortgagee, Rigby, and the administrator and widow of Green,, that the execution of the decree should be suspended for three-years if the administrator should annually pay’- to the mortgagee interest on the mortgage debt at ten per cent per annum ; aud it was directed to be so suspended if the interest, was so paid. After the expiration of the three years, and while appellees were yet minors, a sale of the land was made-under the decree, at which sale Mrs. Rigby became the purchaser.

On the trial of this suit the appellees (plaintiffs in ejectment) proved title in their father and their heirship, and rested. The appellants'then offered in evidence We record of the proceed-ingsinthe Chancery Court, the sale of the land thereunder, and the conveyance of the commissioner to Mrs. Eigby, all of which, on objection by appellees, was excluded by the court. From a judgment in favor of plaintiffs in ejectment this appeal is prosecuted, and the action of the court below in excluding the evidence is assigned for error.

Appellees contend that there is no error in the action of the court below; that the decree was not valid as to them, because the return of the sheriff fails to show any service of process on them, and also because the decree was rendered by consent of the administrator and widow of their father.

If the sheriff had returned the writ with only the word “ executed ” indorsed thereon, it would have been impossible to say that it referred to one or more of the defendants, less than all. If, on the other hand, he had returned that he had executed the process by delivering copies of the same to the administrator and widow, a failure to serve upon the infant defendants would be apparent. The return as made does not show with certainity how and on whom the process ivas served, but we think by fair and reasonable construction it includes service on the infants as well as on the administrator and widow. The statute (Code 1857, p. 489) required service to be made personally on the defendant, and a copy of the writ to be delivered to him. The delivery of the copy is something in addition to the personal service, by reading or exhibiting the original process to the defendant. The return in this case is not necessarily descriptive of all that the officer did, but. may, and, we think, ought to be construed as showing a delivery of copies of the writ to two of the defendants, in addition to the- “ execution ” of the process on each one of them named in it.

A writ commanding the officer to summon six persons cannot be said to be “ executed” by service only on two. We are of opinion that the more reasonable and obvious construction of this return is to hold the words which follow the word “executed” to mean something in addition to, rather than descriptive of or limiting, the effect of said word. The words are at least fairly susceptible of such construction, and this is sufficient. Bacon v. Bevan, 44 Miss. 293. By such construction the return, while not in conformity with the statute, and therefore irregular, was sufficient to show an effort on the part of the officer to execute on all; and the decree, though voidable on appeal, was not void. Campbell v. Hays, 41 Miss. 561; Harrington v. Wofford, 46 Miss. 31.

The decree does not appear to have been by consent. It is regular in form, except that by agreement between the mortgagee and the administrator and widow of the mortgageor its execution was to be suspended for three years. Nothing appears of any consent to anything except the suspension of the execution. The learned judge erred in excluding the evidence offered by appellants, and for this reason the judgment is reversed and a new trial awarded.