Opinion
No. 33991.
January 22, 1940.
1. ATTACHMENT.
Attachment in chancery is based on a debt owing from a non-resident, and there must be effects in the hands of resident defendants, or lands must be attached in manner provided by the statute, to give the court jurisdiction (Code 1930, sec. 173 et seq.).
2. WILLS.
Where codicil which directed that sums owing testator, as specified, be treated as "advancements" was signed by a number of the beneficiaries to acknowledge accuracy of the sums specified, the codicil converted the pre-existing debts, if such they were, into "advancements" so that debt of beneficiary who had signed the codicil no longer existed, unless a new debt was created by some instrument of writing.
3. WILLS.
A testator who, by codicil, the terms of which had been accepted by beneficiary, had converted pre-existing debt of beneficiary, into an advancement could not without consent of that beneficiary recreate the debt by a simple declaration in a subsequent will that debt existed accompanied by direction that his executors collect it.
4. ATTACHMENT.
Where debt owing testator by beneficiary, if any, had been converted into an advancement, no debt existed to give jurisdictional foundation for attachment in chancery and bill therefor was properly dismissed for want of jurisdiction.
APPEAL from the chancery court of Tallahatchie county; HON. R.E. JACKSON, Chancellor.
Jamie L. Whitten, of Charleston, for appellant.
Sec. 173 of Code of 1930, providing for attachments in chancery, is as follows:
"Non-Residents — Absent or Absconding Debtors. — The court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any non-resident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance."
Aetna Ins. Co. v. Robertson, 126 Miss. 387; Nugent Pullen v. Robertson, 126 Miss. 419 at page 427.
The distributive share of Charles V. York to the estate of Mary S. York and held by the executors of the estate of Mary S. York as charged in the bill consisting of money and bonds or effects comes within the provision of Section 173 of the Code of 1930, requiring that some person in this state must have effects of, or are indebted to such absent or absconding debtor.
The court in the Aetna Insurance case, 126 Miss. 387, states that the court, independently of statute, may hold the effects of the non-resident in the hands of the resident.
M. O.R.R. Co. v. Swain, 164 Miss. 825; I.B. Rowell Co. v. Sandifer, 129 Miss. 167; Griffin v. Levee Commissioners, 71 Miss. 767; Robertson v. Monroe County, 118 Miss. 547; Dollman v. Moore, 70 Miss. 267.
Sec. 363, Code 1930, is as follows: "Suits against executors, administrators, and guardians, touching the performance of their official duties . . . shall be brought in the chancery court in which the will was admitted to probate. . . ."
24 C.J. 768.
It was held in the recent case of State ex rel. Gully, State Tax Collector, v. Massachusetts Bonding and Insurance Co., 191 So. 285, a suit by the State of Mississippi on the relation of the state tax collector against the Bonding Company, surety on the bond of A.R. Hutchens, deceased chancery clerk of Humphreys County, and others, to recover money alleged to have been misappropriated, "that Section 352, Code of 1930, in part provides: `The court in which a will may have been admitted to probate, letters of administration granted, or a guardian may have been appointed, shall have jurisdiction to hear and determine all questions in relation to . . . all demands against it by creditors or others.'"
Under this statute jurisdiction of all demands of creditors or others against an estate of a decedent is vested in the chancery clerk of the county in which letters of administration were granted even though there are other defendants to the suit, some of whom may reside or be found in counties other than that in which letters of administration were granted.
Buie v. Pollack, 55 Miss. 309.
How can the non-resident defendant be heard to object to the venue when the venue can be changed only on application of the resident householder and that where he is sued personally and not, as here, sued only nominally? Especially where the non-resident is charged with an effort to defraud his creditor, this complainant.
So. Pac. R.R. Co. v. Lyon, 99 Miss. 186, 54 So. 728, 34 L.R.A. (N.S.) 234, Ann. Cas., 1913d 800.
Had this suit been filed in the Chancery Court of Yalobusha County, Mississippi, where the lands are situated, the chancery court of a different county and in fact a different chancellor, by its order would be directing the administration of the estate of Mary S. York probated in the First District of Tallahatchie County. It is easy to see that this condition is the very thing which Section 363, Code of 1930, provides against.
Clark v. L. N.R. Co., 158 Miss. 287.
The Chancery Court of the First District of Tallahatchie County, having jurisdiction by reason of the attachment, will proceed to afford complete relief.
Griffith's Chan. Practice, Sec. 28; Baker v. Nichols, 111 Miss. 673; Vicksburg Yazoo City Tel. Co. v. Citizens' Tel. Co. et al., 79 Miss. 341; Morrison v. Snuff Co., 79 Miss. 330.
Numbers of complainants with separate damages may sue one defendant — where injury is continuing in its nature, as maintenance of a nuisance injurious to all — abatement of nuisance is ground of equity jurisdiction.
Y. M.V.R. Co. v. McConnell, 127 Miss. 580.
A court of equity has jurisdiction to foreclose a deed of trust, and, having obtained jurisdiction of the subject matter and the parties, may take jurisdiction of all questions between the parties as to such contract, and in one suit may settle all matters flowing from such contract.
Robertson et al. v. Krauss Sons, 129 Miss. 310.
Frank York is executor of the estate of S. York and as such is complainant and since he is executor of the estate of Mary S. York, his name appears as defendant. This is permissible.
Moore v. Ferguson, 72 N.E. 126; Powell v. Jackson, 111 N.E. 208; Pardee v. Mut. Benefit Life Ins. Co., 265 N.Y.S. 837; Velten v. Western So. Life Ins. Co., 76 S.W.2d 1035.
There is no other remedy available.
21 C.J. 71, Sec. 47 and note 54; Penn v. Brooks, 6 How. (Miss.) 373; Dawson v. Clark, 3 Sneed (Tenn.) 438; Cooper v. Nelson, 38 Iowa 440.
This is not a suit to remove cloud on title but is primarily a suit in attachment against a non-resident. This court has jurisdiction as hereinbefore set out.
The sole question before the court on the motion to dismiss is whether this court shall retain jurisdiction of the attachment suit. If the court retains jurisdiction, then and then only will the question arise as to whether the court, ancillary to the attachment suit, can determine whether these lands are in reality the lands of C.V. York and affix a lien against such lands to pay the unpaid balance of the debt of C.V. York to the S. York estate after the application of the sum owed C.V. York by the Mary S. York estate to said indebtedness as adjudged by the court.
Thus there can be no question that the bill charges an indebtedness due the estate of S. York by Charles V. York; that S. York intended the debt to be paid at the time of the loan and at the time he executed his last will and testament.
It is said that the codicil to the first will which was signed by Charles V. York terms this an advancement. It is so termed in the instrument. However, all the children of S. York signed this codicil showing what they had each borrowed from S. York. This fact does not make this advancement.
The doctrine relating to advancements in the strict sense applies only in case of intestacy.
Sec. 1409, Code 1930; Whelan v. Whelan, 27 Pa. Co. 161.
An instrument given by a son to his father, wherein he acknowledged himself indebted in a certain sum as an advancement, and agreed to pay interest thereon, which was to be deducted from his share of the estate, is an evidence of an indebtedness, and not a mere advancement; and the subsequent execution of a will in which the same was not recognized did not convert the alleged advancement into a gift.
Kinney v. Newbold, 88 N.W. 328; Ritch v. Hawxhurst, 21 N.E. 1009; Francis' Estate, 212 N.W. 306; Welch v. Welch, 147 Miss. 728.
Where a testator during his life made advancements to his adult children, taking receipts from them in full of their interest in his estate, the receipts are in the nature of contracts and extinguish the rights of the parties giving them, and of their heirs, in testator's estate.
Norfleet et al. v. Kate Callicott et al., 90 Miss. 221.
Where no contract, because of no consideration, party should not be bound.
Francis' Estate, 212 N.W. 306; Ritch v. Hawxhurst, 21 N.E. 1009; Appeal of Potts (Pa.), 10 A. 887; Dawson v. Macknet, 8 A. 312; Appeal of Thompson, 42 Pa. 345 ; Hays v. Welling, 96 A. 843, 98 A. 61; Dramer v. Lyle, 197 F. 618, 201 F. 248; Lanings Estate, 88 A. 289; Barnetz's Estate, 31 Pa. Co. 522; Dares Estate, 24 Pa. Co. 58; Beckhans v. Ladner, 21 A. 724; Hopkins v. Holt, 9 Wis. 228; Aster v. Ralston, 179 Ill. App.? 194.
As to revocation of former will by subsequent will, see 68 C.J., Secs. 491, 559; 69 C.J. 1031, Sec. 2233.
Where a will is revoked in toto, whether by the act of the testator or by operation of law, such will is ordinarily held to be void for all purposes, and where the revocation is effected by reason of the execution of a subsequent will, this later will alone is effective."
Succession of Gilmore, 102 So. 94; Hartwell v. Rice, 1 Gray (Mass.) 587.
A writing executed in the form of a will may confer rights which may be enforced against heirs of deceased, notwithstanding its revocation as a testamentary instrument.
Ellsworth v. Aldrich, 295 S.W. 206.
One may do what he will, with legal limits, with his own.
Hiserodt v. Hamlett, 74 Miss. 37; Holcomb v. Holcomb, 173 Miss. 192.
The debt claimed is not barred by the Statute of Limitations.
Sec. 2310, Code of 1930; Mason v. Stroud, 155 Miss. 829; Robinson v. Moore, 76 Miss. 89; 50 C.J. 1202, Sec. 743; Bell Engine Co. v. Bennett Co., 152 N.W. 550.
Julian C. Wilson and Lake Hays, both of Memphis, Tenn., for appellees.
Two defendants, Charles V. York, non-resident principal defendant (the claimed debtor) and Vernon York, grantee in a conveyance claimed to be fraudulent, filed motions to dismiss for lack of jurisdiction.
These motions, while embracing the same grounds on the face of the bill which were incorporated in the demurrers of the other defendants, went beyond the face of the bill and set up certain additional grounds not now deemed important. This procedure was proper and certainly the discretion of the trial court.
Brashier v. J.C. Conner Sons, 181 Miss. 872.
The demurrers of Cordra York and Mrs. Nellie A. York set up the same grounds on the face of the bill for dismissal that are set up and relied upon in the two motions to dismiss. So, in effect on the face of the bill here, motions to dismiss and the demurrers will necessarily be treated alike and for simplicity as if they were demurrers.
Hardware Co. v. Bromfield, 159 Miss. 175.
It is immaterial then whether the same defenses to the bill were set up by motion to dismiss or by demurrer, or upon which the court acted, if a just and correct result was reached.
All the defenses (except that of Mrs. Seta Butler York) go only to the jurisdiction of the court. To afford the chancery court jurisdiction for an attachment and a bill to set aside fraudulent conveyances, it is naturally and, of course, necessary that a valid debt be alleged.
Code of 1930, Secs. 173 and 407.
The claimed debt was an express advancement.
Code of 1930, Sec. 374; Crosby v. Covington, 24 Miss. 619; Lisloff v. Hart, 25 Miss. 245; Chiles v. Gallagher, 67 Miss. 413, 421.
The principle that any advancement, and particularly one which is expressly and clearly recognized by the ancestor, is irrevocable is clearly recognized in the case of Green v. Green, 145 Miss. 87, 111.
1 R.C.L. 660, par. 10; 18 C.J. 929, Sec. 246.
Even if it were a debt, it was barred by the Statute of Limitations.
Sec. 2299, Code of 1930; Roberson v. Moore, 76 Miss. 89; Fisher v. Burk, 123 Miss. 781; Wright v. Mordaunt, 77 Miss. 537.
The bill showing the debt is barred, it must have also shown that the statute ceased to run for some reason. The only reason would be that it accrued in the State of Mississippi. The bill fails to show that at that time Charles V. York was a non-resident or that his father did not live at Memphis with him or that the debt was not made when his father was on a visit to him at that place. It shows that it was barred and fails to show that the time did not run because it accrued in the State of Mississippi. It fails to give any other reason why the debt is not barred. The debt is, therefore, barred on the bill itself.
The lands involved lay wholly in Yalobusha County, against non-residents of the state. The bill was filed in the First District of Tallahatchie County, where not even complainants resided.
Sec. 363, Code of 1930.
Upon the assumption that a valid debt was set up and that the attachment in chancery would fix the cause of action at the place of attachment, there still was no valid jurisdiction of any sort for the chancery attachment. Neither defendant attached for garnishment lived in the First District of Tallahatchie County, Frank York living in Grenada and going to Tallahatchie County to be served, and Walter York living in the Second District of Tallahatchie County.
Advance Lumber Co. v. Laurel Bank, 86 Miss. 419; Sec. 173, Code of 1930.
In this case the same parties who are parties defendant alleged to hold the indebtedness are parties plaintiff seeking to recover that indebtedness. Such a suit because of its open invitation to fraud and collusion is not within the contemplation, much less the letter, of the statute. The question is squarely decided in the only opinion on the subject we have been able to find. It is Delta Insurance Realty Co. v. Interstate Fire Ins. Co., 113 Miss. 542.
The basis of the jurisdiction of the chancery court in this case is statutory; and the court has no jurisdiction under the statute unless the following facts exist, viz., the absence of the debtor, the presence here of effects in the hands of resident persons belonging to him, or debts due to him by resident persons, or his having lands or tenements in this state.
Sec. 536, Code of 1906; Advance Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 So. 313.
The above facts, or any one of them, might exist, and still the court would be without jurisdiction to proceed to judgment against the thing unless it be first brought under the control of the court by proper process, against the land, or against the person having the effects belonging to, or owing the debt to, the non-resident defendant.
When the law is applied, as stated above, in the case before us, we find no difficulty in deciding that the decree of the chancellor in dismissing complainant's bill was eminently correct.
Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931.
It is submitted that the Chancery Court of the First District of Tallahatchie County acquired no jurisdiction of Charles V. York by complainants suing themselves as persons being indebted to Charles V. York. This is true even though Frank York and Walter York would hold the funds they collected as trustees of the estate of Sylvester York and would suffer judgment against themselves as trustees of the estate of Mary S. York.
Argued orally by Jamie L. Whitten, for appellant, and by Julian C. Wilson, for appellee.
Frank S. York and Mrs. Ethel York Davis, executors of the estate of Sylvester York, deceased, filed a bill against Chas. V. York individually, Walter York as executor of the estate of Slyvester York, deceased, and Frank S. York and Walter York as executors of the estate of Mrs. Mary S. York, deceased, Mrs. Nellie York, Cordra York, Mrs. Seta Butler York and Vernon York, seeking to subject, by attachment in chancery, funds and property in the hands of the executors of Mrs. Mary S. York, deceased, and Sylvester York, deceased, and to set aside certain conveyances of lands, and to subject lands belonging to some of the defendants to the alleged demands by the executors.
The bill proceeds upon the idea that the defendant, Chas. V. York, was indebted to the estate of Sylvester York. Chas. V. York was a non-resident of the state of Mississippi, residing in Memphis, Tennessee — the others being also residents of Tennessee. Suit was filed in the Chancery Court of the first district of Tallahatchie county, Mississippi; the lands sought to be subjected to the alleged debt were situated in Yalobusha county, Mississippi.
The wills of Sylvester York and of Mrs. Mary S. York were made exhibits to the bill; and the defendants filed a motion to dismiss the cause for want of jurisdiction, and also demurrers to the bill for want of jurisdiction and for various other defects.
The principal controversy here turns upon the question of whether Chas. V. York was indebted to the estate of Sylvester York, deceased. Many other questions are presented in the record, but we think the one stated will control the decision of the case, and that it will not be necessary to decide the other questions presented.
It appears from the exhibits to the bill that on the second day of September, 1923, Sylvester York executed a will in which the following provision appears: "Second. It is my will and wish and I hereby devise and bequeath all of my property, real, personal and mixed wherever situated or located, after the payment of debts and expenses as provided in first paragraph, share and share alike to my beloved wife, Mary Combs York, sons Walter L. York, Charles V. York and Frank S. York and my daughters, Mrs. Ethel York Bell and Ruby York Stevens, with the condition that any amount advanced or loaned to either or any of my said children and unpaid at the time of my death shall be charged to and deducted from the share or part of my estate herein devised and bequeathed to said child. In other words my estate is to be divided into six equal parts and distributed to my wife and five children, except where either or any of my said children are due or owing me anything at my death said amount so owing shall be deducted from the share of my estate going to my wife and the children who have not borrowed and do not owe me anything. The amount owing to me by any child shall bear interest at the rate of four per cent per annum and credited with any interest paid on said obligation."
The will provided for the executors and gave them power to sell and dispose of the property, etc., which is not material here.
On the 15th day of February, 1934, Sylvester York executed a codicil to his will, the first provision of which seems to refer to a will executed on the 15th of February, 1934. Apparently there is an error in the date, as the codicil bears the same date. In the codicil it recited:
"Item One; Whereas, I have from time to time made certain gifts to each of my children, in the aggregate sum of $6,000.00 (six thousand) to each; and whereas, I have from time to time made certain advancements to certain of my said children, and in order that there may be no disputes among them at my death as to the amount which I have advanced either of them, I have concluded to execute this codicil, stipulating the exact amount which I have advanced each of my children to the date of this codicil.
"Item Two: I do hereby set opposite the name of each of my children in figures the amount which I have advanced that child to the date hereof;
Walter L. York ................................. $3,500.00 Charles York ................................... 4,765.00 Ethel York Bell, Cash .......................... $ Cash value real estate advanced $ Total advancement to Ethel York Bell ....... 740.00 Ruby York Lenow Cash .......................... $ Cash value real estate advanced $ Total advancement to Ruby York Lenow ....... 1,740.00 Frank S. York .................................. 1.00
"And I direct that the amount so advanced to each of my said children shall be deducted from his or her share in my estate at my death.
"Item Three; I bequeath unto my beloved wife, Mary York, $6,000.00 (six thousand) to be paid out of my estate at my death, before there is any division made. My reason for making this request is that my said wife shall receive an amount equal to the gift which I have made each of my said children.
"Item Four. I do hereby ratify and confirm my said will executed the 2nd day of September, and codicil thereto executed the ____ day of ____ in every other respect."
This codicil was witnessed by Mrs. O.M. Laughlin and Mrs. Erna Holland. It was also signed by Walter L. York, Chas. V. York, Mary S. York and F.S. York.
On the 22nd day of August, 1934, another will was executed, duly witnessed, in which, after directing payment of his debts, and declaring the instrument to be his last will and revoking all other wills, it provided:
"Second, I bequeath unto my sons, Charles V. York and Walter L. York, the sum of Fifty ($50.00) Dollars each; said sons having already received from me as their part of my estate large sums and assistance, such being greater than the rest of my children will receive under this will.
"Third. I give, bequeath and devise unto my wife, Mary Combs York, my daughters, Ethel York Bell and Ruby York Lenow, and my son Frank S. York, the residue of my estate, share and share alike, and of what ever kind and nature and whatever situated. Except that my wife is to have Six Thousand ($6,000.00) Dollars before any of my children receive their part or division.
"Fourth. I hereby appoint, name and nominate Frank S. York, Ethel York Bell, and Walter L. York, Executors of this my last will and testament, and hereby waive and relieve them from making bond as such executors and from accounting to any courts as such executors or otherwise; and further direct them to collect from my said son, Charles V. York, the indebtedness due him to me in the amount of Forty-seven Hundred Sixty-five ($4765.00) Dollars, this indebtedness representing money loaned to him by me and which he has never repaid, and on which he is to pay interest at the rate of 4% per annum. I further empower and direct my executors, if they see fit and proper, to lease, mortgage, sell, convey and dispose of any part of my lands, or all of same, for cash or on terms, and authorize the re-investment of the proceeds of such sale," etc.
The bill recited, in reference to the alleged debt of Charles V. York to Sylvester York, deceased:
"Complainants would show that on the 22nd day of August, 1934, Sylvester York executed his last will and testament, which will was probated in Cause No. 4133 aforesaid, said will reciting that Charles V. York was indebted to S. York and to his estate in the sum of $4,765.00, and directed his (S. York's) executors to take legal action to collect said indebtedness from said Charles V. York at his, Sylvester York's death, a copy of said will being attached hereto as exhibit `A' as aforesaid. Complainants would further show that by decree of this court complainants together with Walter York as executors of the estate of S. York were directed to institute legal action against Charles V. York for the collection of said indebtedness due the estate of their father, S. York, deceased, as aforesaid, said decree being rendered on October 28th, 1938 and being recorded in the minutes of the Chancery Court of the first district of Tallahatchie County, Mississippi in Book 9 at page 199."
They further show that their mother, Mrs. Mary S. York, was one of the devisees under the terms of the will of Sylvester York, who died October 13th, 1937; and that under the terms of the will of the said Mrs. Mary S. York, Chas. V. York inherited one-fifth of said estate, valued at approximately $7,500, the assets of the estate having been largely converted into cash and bonds; so approximately $1,500 is in the hands of the executors, Frank S. and Walter L. York, the property of Chas. V. York, as his distributive share of the estate. The complainants would show that it would be the duty of the complainants, Frank S. and Walter L. York, to pay over to Chas. V. York the sum of money; and it is stated that all the defendants, excepting the executors of the estate of Mrs. Mary S. York, deceased, are non-residents of the state of Mississippi, and not subject to the process of the state courts. It is averred that at all times Chas. V. York has refused to make any payment of the indebtedness alleged to be due the estate of Sylvester York, deceased, although requested to do so; and complainants aver that such sums of money and property due him from the estate of Mrs. Mary S. York should be applied to said indebtedness, and that unless this is done Chas. V. York will take said money and property outside the state of Mississippi, so as not to be subject to the order of the courts of Mississippi, and so defeat any action on the part of the estate of Sylvester York to collect the indebtedness.
It was further alleged that on the 2nd day of November, 1935, Chas. V. York was advised of the contents of the will of Sylvester York, directing the executors to take legal action to collect such indebtedness from the said Chas. V. York, who owned certain lands in Yalobusha county, described therein.
The chancellor sustained the demurrers and motion to dismiss for want of jurisdiction, and from that decree dismissing the bill this appeal is prosecuted.
In order to sustain an attachment in chancery there must be a debt owing from the non-resident, and there must be effects in the hands of the resident defendants, or lands must be attached in the manner provided by the statute to give the court jurisdiction. Code 1930, Sec. 173 et seq. If Chas. V. York does not owe the estate of Sylvester York any money the jurisdiction to attach, of course, does not exist.
Turning to the codicil above quoted, which was executed on February 15, 1934, it will be seen that the codicil converted the pre-existing debts into advancements, the language of the codicil being plain that they were advancements; and that the amounts so advanced should be deducted from the amount of the estate which Chas. V. York would receive from his father's estate. There is, of course, a marked difference between an advancement and an indebtedness. It appears to have been the purpose of the original will to treat the money advanced as an advancement, and to deduct it from the estate at the death of the testator. In the codicil of February 15, 1934, the testator decided to have the amounts to be treated as advancements made definite, and so recited in his will evidenced by the codicil.
The codicil is something more than a part of the will. It was signed by those who would be beneficiaries under the will, or a part of them, including Chas. V. York, which evidence to the amounts was recognized as being proper advancements to be deducted from whatever share Chas. V. York and the others named in the codicil would receive at the death of the testator. The previously existing debt, if it was a debt, was transformed into an advancement; and it was perfectly competent for that to be done; and the meaning of the codicil is too plain to be disputed that it was specifically an advancement of a certain specified amount.
Having converted the previously existing debt, if it was then in fact a debt, into an advancement, the terms of which were accepted by Chas. V. York as the amount to be so deducted, there was thereafter no debt, unless a new debt was created by some instrument of writing, which the record fails to show.
In other words, the bill proceeds upon the idea that the sums advanced were still debts, and it is true that Sylvester York, in the will dated August 22, 1934, recited that there was a debt, and directed his executors to collect it; but the mere declaration of the testator cannot change the essential character of the transaction. He cannot, after converting a debt into an advancement, re-create the debt by his simple declaration. There was at the time of making the will on August 22, 1934, no debt due by Chas. V. York to Sylvester York, to be collected by the executor. The subsequent will could not, without the consent of Chas. V. York, re-convert it into a debt.
This being true, there was no jurisdictional foundation for the attachment in chancery, and the court below was correct in dismissing the bill for want of jurisdiction.
The other questions are not free from difficulties; but they cannot be decided, because, since there was no debt the court was without jurisdiction to issue the attachment, regardless of the other question, as to whether or not the lands in Yalobusha county could be attached in the Chancery Court of Tallahatchie county.
The judgment of the court below is affirmed.
Affirmed.