Wilkinson County MsArchives Court.....Carmichael, Vs. Davis 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 9:04 pm

Source: Reports Of Cases - Mississippi
Written: 1834

June Term 1826.

J. F. CARMICHAEL, appelle, vs. D. DAVIS, administrator, &c., of HENRY HUNTER, 
deceased, appellant.

An administrator cannot, as such, sustain a suit for forcible entry and 
detainer of real estate.

OPINION OF THE COURT — by the Hon. EDWARD TURNER. 

This is an appeal from the judgment of the Wilkinson circuit court, rendered 
at the last May term.

The suit was originally commenced under the act concerning forcible entries 
and detainers, passed June, 1822, before Benjamin Eccles, a justice of the 
peace of said county, (who was also at the same time clerk of the county court 
of said county, and acted in the case in both capacities,) by David Davis, as 
administrator de bonis non, of the estate of Henry Hunter, dec'd, against John 
F. Carmichael, for unlawfully turning him the said Davis, as aforesaid, out of 
possession of a certain portion of land, part of a tract lying in said county. 
The defendant was required, by the process, to appear on Tuesday the 25th of 
April, and the record shews the proceedings before the said justice and his 
associates, to have been commenced on Tuesday the 26th of April. The defendant 
did not appear by himself or counsel. A verdict was rendered on the petition, 
in favor of the petitioner, in the form prescribed by the statute, and 
judgment thereon rendered, and writ of possession awarded; and the justice's 
court then adjourned. The defendant below, Carmichael, applied to the judge of 
the third judicial district, for a writ of certiorari, to remove the 
proceedings into the said circuit court, and to be restored to the possession 
of the premises in question. The writ was granted, and returned executed, to 
the last term of that court. The defendant below, Carmichael, shewed by 
affidavits that he was prevented from appearing at the trial of said case 
before the justices, by indisposition in health, and that his counsel was also 
prevented, by engagement in public business; and that on the day on which the 
justices' judgment was rendered, he prayed an appeal before the said presiding 
justice, B. Eccles, which was refused, as his court had adjourned at the time 
the application was made. None of which facts appear in the record of the 
justices' proceedings, or in the return to the writ of certiorari. The circuit 
court, on hearing the case, ordered and adjudged "that the proceedings in the 
court below in refusing an appeal to the said defendant, John F. Carmichael, 
and all subsequent proceedings therein, be set aside, and that the cause be 
remanded to the said court, and that they proceed to grant the appeal as 
prayed for by said Carmichael." It appears also, by the transcript sent up, 
that a writ of possession issued by said B. Eccles, as clerk, as aforesaid, 
and was received by the sheriff on the 26th of April, and was executed, by 
putting the petitioner below, by N. Hunter his agent, in possession of the 
premises, on the 27th of April.

Several points have been raised in this case, most of which, it is unnecessary 
to decide. The justices' court, constituted by the said act, is one of limited 
and special jurisdiction: and although declared by the statute to be a court 
of record, it has no permanency — no continued existence. There has to be a 
new court for each case. Hence, that system and regularity of proceedings, so 
desirable in all judicial tribunals, is not to be expected in these justices' 
courts. They have no regular presiding justice, and have to use the clerk of 
another court to record their proceedings: and yet they are a court of record. 
According to our constitution, each court has the power of appointing its own 
clerk. And in the case before us, the clerk of the court was the presiding 
justice. These special courts are generally constituted and intended to 
subserve public convenience — but they serve more effectually to increase 
litigation, and to render judicial proceedings uncertain, and to perplex and 
embarrass the regular courts of the country.

We have some doubts whether this is a constitutional court, having no clerk of 
their own appointment; and doubt also the propriety of the clerk acting as a 
justice of the court, on strict legal principles. But on these points we will 
give no opinion, as it is not necessary to decide them. We think the judge of 
the circuit court erred in relation to the appeal, as he had to travel out of 
the record, to find the fact on which he decided.

The court will give a distinct opinion on one point only in this cause, and 
that is, as to the right of an administrator, to the possession of the real 
estate of his testator, or to any action to recover the possession.

According to the long established principles of law, the real estate of a 
deceased person descends to the heirs at law, and the personal goes to the 
executor or administrator, subject to such dispositions as may be made thereof 
by the testator by last will and testament. The instances in which an 
administrator can lawfully dispose of the real estate of his intestate, are 
special, and are prescribed by statute. Whenever, therefore, it becomes 
necessary for an administrator to dispose of real estate, he must bring 
himself within the provision of some statute, by a shewing, on the record,
and must pursue his authority strictly. In this case no such shewing exists. 
We recognize the principles laid down in the case of John Willard, plaintiff 
in error, vs. Joanna Nasow, administrator; reported in Massachusetts Rep. 240, 
as sound law, applicable to this State, and for the sake of brevity, refer 
thereto, for the reasons of this opinion.

If David Davis had said in his own name, and right of possession, and not as 
administrator, he might have maintained his suit against a wrong doer.

If he had set forth a case on record, by which he could have brought himself 
as administrator within the provisions of any statute, authorizing him to 
possess or dispose of the real estate of his intestate, he might have 
maintained this action. But not having done so, he, as administrator, had no 
right to this, or any other action, to recover possession of the premises in 
question.

It is therefore ordered and adjudged that the judgment of the circuit court be 
reversed; and also, that the judgment of the justices' court be reversed, at 
the costs of the appellant, D. Davis, administrator of Hunter, and that a writ 
of restitution be awarded in favor of J. F. Carmichael.

Judges Child and Black concurred.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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