Fool’s Gold
April 1, 2019 § 3 Comments
Pondering the imponderable on April Fool’s Day …
“The foolish have us far more in their power than the wise.” — Jean Ingelow
“Those who wish to appear wise among fools, among the wise seem foolish.” — Quintilian
“What a fool believes he sees, no wise man has the power to reason away.” — Doobie Brothers, What a Fool Believes
“A common mistake that people make when trying to design something completely foolproof is to underestimate the ingenuity of complete fools.” — Douglas Adams
“Foolery, sir, does walk about the orb like the sun; it shines everywhere.” — Shakespeare, Twelfth Night, II, v
“A fool sees not the same tree that a wise man sees.” — William Blake
“Let a fool hold his tongue and he will pass for a sage.” — Publilius Syrus
“No creature smarts so little as a fool.” — Pope
“He that trusteth in his own heart is a fool.” — Proverbs 28:26
“A learned fool is more foolish than an ignorant one.” — Molière
Reading
March 29, 2019 § 2 Comments
Their Eyes Were Watching God, by Zora Neale Hurston. An African-American woman looks back on her metamorphosis through the 1920’s from naive girl to teen to marriage and ultimately independent widowhood, surviving racial oppression, hurricane, violence, and sexism. Hurston is controversial, but her writing is full of humanity and insight. Fiction.
Fordlandia, by Greg Grandin. Who knew that Henry Ford in the 1920’s bought a tract of land three times larger than Rhode Island in the Amazon jungle with the goal of establishing an American-clone utopia and, at the same time, raising rubber trees to avoid Britain’s monopoly? This is the true story of his spectacular failure, its huge cost, and the people who unsuccessfully fought nature and natives for Mr. Ford. Non-fiction.
The Half has Never Been Told, by Edward E. Baptist. A compelling argument that the meteoric rise of the US economy in the nation’s first fifty years and after was directly due to slavery, in both the north (until abolition) and the south. He attacks the widely held notion that slavery was unprofitable and inefficient, explaining how the system worked and produced massive wealth, and supports his position with facts and figures. Baptist weaves in stories of particular slaves and areas to illustrate his points, along with economic data. This well-written book will hold your attention. Non-fiction.
Things Fall Apart, by Chinua Achebe. The fictional story of Nigerian Igbo tribal leader Okonkwo, his rise in power, his downfall, and the ultimate disaster of his tribe’s traditions and culture brought about by the arrival of white European missionaries. Achebe’s portrayal of tribal ways, religion, mysticism, and customs skillfully immerses the reader in a primitive culture that is unexpectedly sophisticated and complex. Fiction.
Prisoners of Geography, by Tim Marshall. Geopolitics for Dummies. Marshall explains why certain historical events are not only shaped by, but also are made inevitable by, geography. Non-fiction.
The Romanovs, 1613-1918, by Simon S. Monterfiore. History of the Tsars of Russia during the Romanov dynasty. The author draws not only on historical sources, but also on rumor and gossip, which makes for a juicy and spicy stew of back-room entertainment. Extravagant, despotic, autocratic, vicious, enlightened, powerful, psychopathic, murderous, generous, venal, adulterous, paranoid, patrons of the arts, vulnerable, militaristic, and more, the Romanovs held the immense expanse of their nation together for more than 300 years. Mostly non-fiction.
Devil in the Grove, by Gilbert King. In Groveland, Florida, in 1949, four young black men are falsely accused of raping a white woman, and young lawyer Thurgood Marshall comes to their defense for the NAACP. This distressing tale tells of Marshall’s valiant efforts, and the white power structure that sought to thwart him at every turn. The toxic blend of murder, violence, racism, and poverty in the pre-civil-rights era is on full display, along with vignettes of similar injustices in neighboring states. Non-fiction.
Sing, Unburied, Sing, by Jesmyn Ward. Exploring the lives and interrelationships of a poor, rural family on the Mississippi Gulf Coast. It becomes an episodic novel of a black woman’s journey to meet her white husband at Parchman on his release, told from different points of view of various characters, as well as that of a dying grandmother and her spirit, and the spirit of a long-dead prisoner. Fiction.
War and Peace, by Leo Tolstoy. Okay, this is more of a victory lap than a review. On my fifth try I made it through all 1,450 pages. Bravo for me. Fiction.
Reprise: Handling the Insolvent Estate
March 22, 2019 § Leave a comment
Reprise replays posts from the past that you might find useful today.
INSOLVENT ESTATES
January 13, 2011 § 4 Comments
When the debts and expenses of the estate exceed the value of its assets, the estate is said to be insolvent, and there is a procedure for adjudication of insolvency, satisfaction of creditors, and payment of administration expenses that is spelled out in MCA § 91-7-261 through -268.
The estate is insolvent when its debts and the expenses of administration exceed the value of the real property and the other property that is not exempt. You can find out more about exempt property here.
Either the administrator or a creditor may petition the court to adjudicate its insolvency.
MCA § 91-7-261 sets out the procedure to determine insolvency. The administrator is required to “take proper steps speedily to ascertain whether the estate be solvent or insolvent.” If the administrator finds that the estate is insolvent, she files a “true account” itemizing all of the personal estate, assets of every description, the land of the deceased, and all of the deceased’s debts. Notice is given to the devisees or heirs, and the matter is presented to the court for hearing. If the court determines from the account that the estate is indeed insolvent, the chancellor will order that the assets be sold and that the expenses of ” … the last sickness, the funeral, and the administration, including the commissions …” are first paid out of the proceeds,” and that any remaining proceeds be divided among the creditors ” … in proportion to the sums due and owing them respectively …”
The procedure for distribution of remaining proceeds among the creditors is provided in MCA § 91-7-269. After the time to probate claims has elapsed, a notice is published for three consecutive weeks in a newspaper published in the county that the claims against the estate will be taken up by the court on a day and at a time certain, that any and all claims not required by law to be probated shall be filed with the clerk by a stated date, and that all creditors may attend. A hearing is held at which the administrator may object to any claim, evidence is presented pro and con, and the court may either allow it in whole or in part, or reject it in whole or in part. The administrator may file a verified application to be reimbursed for claims paid prior to the adjudication of insolvency, and the court shall treat them as if they had been properly probated.
MCA § 91-7-271 provides that the allowed claims shall be paid pro rata, and any creditor not paid within ten day of the court’s order shall have execution against the executor or administrator and the sureties on his bond.
Any suit pending against the executor or administrator at the time of insolvency does not abate, but may be prosecuted to final judgment, according to MCA § 91-7-273, but -274 bars suits from being filed after the estate is declared insolvent. You should read -273 carefully for the effect of and payment of a judgment against the estate for suits that were pending when the insolvency is determined.
Changing Rule 81
March 15, 2019 § 5 Comments
As I did last month, I invite your comments and suggestions as to how MRCP 81 might be amended to improve its performance. Or maybe you think it’s fine as is. Please comment and let me know your thoughts.
The MSSC Advisory Committee on Civil Rules is combing through the MRCP to suggest amendments. Your thoughts as practitioners and judges will be helpful in the process.
Adequate Proof of the Thalweg
March 4, 2019 § 1 Comment
The Revettes filed suit to confirm title, and the Fergusons counterclaimed alleging ownership by adverse possession. After hearing the evidence, the chancellor ruled that the Fergusons did, indeed, have title by adverse possession. Before entering a final judgment, however, the chancellor ordered the Fergusons to obtain a survey of the disputed property. When they did so, producing a survey by Mr. Saul, the chancellor attached it as “Exhibit A” to the final judgment without further hearing. The Revettes appealed.
In Revette v. Ferguson, handed down December 11, 2018, the COA affirmed the chancellor’s decisions on the issues of adverse possession and damages, but reversed and remanded for further evidence on the survey. Judge Greenlee wrote the majority opinion:
¶29. The Revettes argue that the chancellor should not have considered the Saul survey, “Exhibit A,” in his final judgment because they did not have the opportunity to challenge that survey at a hearing or cross-examine the surveyor and it was not admitted as evidence. Although the Fergusons argue that the Revettes waived this issue, we find the Revettes preserved their objection by responding to the Saul survey and attaching their own competing survey, the Walker survey. We hold that it was error for the chancellor to consider a survey without proof being taken and upon the Revettes’ objection; therefore, we reverse and remand this issue to the chancery court. [Fn omitted]
¶30. In order to have a survey properly admitted into evidence, the surveyor needs to be called to explain and be subject to cross-examination. White v. Usry, 800 So. 2d 125, 131 (¶26) (Miss. Ct. App. 2001). In Abercrombie v. Carter, 73 So. 3d 561, 562-63 (¶¶8-11) (Miss. Ct. App. 2011), we held it was error for a chancellor to consider a survey that was properly excluded at a hearing as hearsay under Mississippi Rule of Evidence 802, noting that the parties were not allowed to challenge the survey at the hearing or cross-examine the surveyor. We find the chancellor committed error in this case for similar reasons. The Revettes did not have the opportunity to cross-examine the Fergusons’ surveyor, and the survey was not admitted into evidence for the chancellor’s consideration. Further, a comparison of “Exhibit A” with Exhibit 7, which the parties stipulated to, reveals inconsistencies. Notably, the thalweg of the Chickasawhay River and the approximate water line differ in both exhibits; as do the call lines of the land adversely possessed. We therefore reverse and remand this matter to the chancellor so that the Revettes may challenge the survey in “Exhibit A,” may cross-examine the surveyor, and may offer their Walker survey for use by the court.
For those of us who are ignorant of some nuances of property law, thalweg (pronounced “tal-veg,” from the German), according to a definition I found via Google, is “In geography and fluvial geomorphology … the line of lowest elevation within a valley or watercourse. Under international law, a thalweg is the middle of the primary navigable channel of a waterway that defines the boundary line between states.” Well, that’s a new one on me. In all my years at the bar, I have never stumbled upon that concept. But it should not surprise. It’s yet another instance of how the law can be so gnostic sometimes, especially in property law, where the Druids of Feoffments (practitioners of the alchemy of fee simple) zealously guard their esoteric spells and incantations from us generalists.
A similar case involving necessity of the sponsoring witness is the subject of a post at this link.
“Quote Unquote”
March 1, 2019 § Leave a comment
“We, each of us, need so much to be affirmed. For each of has — gnawing away at the center of our being — a sense of insecurity, some more than others. And frequently, the more insecure, the more aggressive we become. The more we throw our weight about and say people should recognize us.” — Desmond Tutu
“If your compassion does not include yourself, it is incomplete.” — Jack Kornfield
“People have a hard time letting go of their suffering. Out of a fear of the unknown, they prefer suffering that is familiar.” — Thich Nhat Hanh
“Some things cannot be fixed. They can only be carried.” — Megan Devine
The Flawed Tax Sale
February 27, 2019 § Leave a comment
It can only take a minimal flub in the steps leading up to a tax sale for the whole thing to be thrown out.
That’s the lesson you can take from the COA decision in Rebuild America, Inc. v. Drew, handed down January 22, 2019. In that case the chancellor had ruled that Jane Drew never got actual notice of the three tax sales that resulted in forfeiture of her property in Diamondhead, and the failure to notify her in compliance with the statutes rendered the sales — all three — completely ineffective and void. Here is how the COA concluded its unanimous ruling (Tindell not participating):
¶31. Drew was never given proper statutory notice that her property had been sold for taxes or of her right to redeem the property. As our Supreme Court recently reiterated, Mississippi law takes “a hard-line approach” to this issue: “the redemption-notice statute must be followed strictly.” Campbell Props., 2018 WL 6381141, at *4 (¶15). When the statute is not followed strictly, the tax sale is void ab initio—it has no legal effect whatsoever, and it is as if the sale never happened. City of Horn Lake, 2018 WL 2731592, at *3 (¶13). Because each successive tax sale in this case was void ab initio, Drew remains the rightful owner of the property. Accordingly, the judgment of the chancery court is AFFIRMED.
The two important principles are: (1) Mississippi tax sale notice laws must be strictly complied with; and (2) failure to follow the statutes strictly renders the sale void ab initio, meaning it is as if it never happened.
When you are considering whether to take a tax sale case, look at every single stage of the proceedings, and look carefully. It is not enough that there was substantial compliance with the statutes; the cases, of which there are many, demand a strict compliance with the notice and redemption provisions.
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