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graphic note to Lake v. Minnesota etc. Assn., 52 Am. St. Rep. 556, 557.

MUTUAL BENEFIT SOCIETIES.-THE CONTRACT OF INSURANCE between a mutual benefit society and one of its members is made up of the application for membership, the certificate issued, and the charter, constitution, and by-laws of the order: See monographic note to Lake v. Minnesota etc. Assn., 52 Am. St. Rep. 559; Sourwine v. Supreme Lodge K. of P., 12 Ind. App. 447; 54 Am. St. Rep. 532, and note.

WEIS V. AARon.

[75 MISSISSIPPI, 138.]

A JUDGMENT IS AN ENTIRETY, and if void as to one of the defendants is void as to all, as where one of the defendants is dead when it was rendered. This rule is not abrogated by a stat ute declaring that one of several appellants shall not secure a reversal as to himself by assigning some error in a judgment valid as to him, which judgment does not affect his rights, but does constitute reversible error as to the other appellants.

A JUDGMENT AGAINST A PERSON DEAD AT THE TIME OF ITS RENDITION is void, and is therefore subject to collateral assault.

Trial of a claim to certain property alleged to belong to Herman Aaron, who was not a party to the judgment or execution under which it had been seized. This judgment was one in replevin against Basket & Aaron, as principals, and one Upshur, as surety, the latter having died prior to its rendition. It was held to be void by the trial court, and the plaintiffs appealed. F. F. Noel, for the appellant.

Rush & Gardner, for the appellee.

139 WHITFIELD, J. The judgment was in replevin against the principals, Basket & Aaron, and Upshur, the surety on the replevin bond. Such 140 surety is "a party to the litigation by operation of law": Spratley v. Kitchens, 55 Miss. 581; 1 Freeman on Judgments, sec. 176. The surety was dead when the judgment was rendered, yet judgment was rendered against the principals and surety. The judgment was an entirety, and was absolutely void: Parisot v. Green, 46 Miss. 750; Dyson v. Baker, 54 Miss. 28; Hall v. Williams, 6 Pick. 246; Covenant etc. Ins. Co. v. Clover, 36 Mo. 392. In this last case, Moneter and Clover were sued, but Moneter was not served, and the court said: "It is insisted that the judgment is good against Clover, and that he cannot take advantage of the defect as to his codefendant, because it does not affect him. But this is a judgment at law

an entirety. It is good as to all, or bad as to all; and an entire judgment against several defendants will be reversed as to all if it be erroneous as to one."

Counsel for appellee rely upon section 4378 of the Code of 1892 (Code 1880, sec. 1440), as an answer to this well-settled rule. But this rule of practice was not meant to announce that a judgment at law against several, absolutely void because one was dead when the judgment was rendered, is valid as to the living parties, and that they cannot, therefore, on appeal, show it was wholly void, being an entirety. It simply declares that one of several appellants shall not secure a reversal of the judgment as to himself, by assigning some error in the judgment valid as to him, which error does not affect his rights, which, however, constitutes reversible error as to other appellants. The statute has no application in a case where the judgment below is for any reason absolutely void as to all the defendants, but applies when the matter which would reverse it as to one may not do so as to others, such matter being mere error in the judgment, and not going to the power of the court to render any judgment in the particular state of case. But here the error in the judgment made it void as to Basket & Aaron as well as to Upshur, and did affect the rights of Basket & Aaron. When the action of the court below results in merely reversible error as 141 to one of the parties, the other cannot assign here that error; but when the action of the court below is absolutely void as to all, the statute does not apply.

The cases in which this statute applies are illustrated in Terry v. Curd etc. Mfg. Co., 66 Miss. 398, and Burks v. Burks, 66 Miss. 494. The authorities cited by learned counsel for appellants, from 12 American and English Encyclopedia of Law, 147 n, are cases holding that a judgment against one person, dead at the time, is voidable and not void; and some of these cases rest, apparently, upon the proposition that such a judgment (in attachment against land, or in ejectment, being proceedings in rem in one view), is merely irregular. Whatever may be the better view on principle (see 1 Freeman on Judgments, sec. 153, holding such judgments to be irregular only), it is the settled law in this state that such a judgment is absolutely void: See the Mississippi cases in note 5 to said section 153, page 275. And a void judgment may be collaterally assailed. The execution was not authorized by section 3461 of the code of 1892, for that refers to cases where one of the defendants dies after judgment, nor by section 3729. The execution was not levied on the thir

teen bales of cotton, which are not shown to have been disposed of, except by inference to be drawn from the fact of the sale of Basket & Aaron's business to Herman Aaron. The purpose of section 3729 is to have the sheriff, in a case in the attitude of the one at bar, secure the specific property, if to be had, and only if that cannot be done, to make the money: Compare Place v. Riley, 98 N. Y. 4, 5. It is not a case of variance between the judgment and execution, but of failure to follow the statute based on the purpose of securing to the successful party, if to be had, in an action of replevin, the specific property. The voidness of the judgment, however, is decisive.

Affirmed.

JUDGMENT AS AN ENTIRETY.-The plaintiff who sues on a joint judgment must recover against all the defendants or none, for the judgment is an entirety, and a defense good for one is good for all: Watson v. Steinau, 19 R. I. 218; 61 Am. St. Rep. 768, and note. A judgment rendered against three defendants, when two only were served with summons, is void as against all of them: Hulme v. Janes, 6 Tex. 242; 55 Am. Dec. 774; Martin v. Williams, 42 Miss. 210; 97 Am. Dec. 456. A judgment against several defendants, one of whom is dead at the time it is rendered, is a unit as to all the defendants, and hence, on a proper motion being made therefor, must be vacated as to all: Claflin v. Dunne, 129 III. 241; 16 Am. St. Rep. 263.

DECEASED

JUDGMENTS AGAINST PERSONS.-Although there is some conflict in the cases, the great weight of American authority sustains the proposition that where a court has obtained jurisdiction of the parties and of the subject matter during the lifetime of the parties to the suit, a judgment rendered for or against one of them after his death, although erroneous and liable to be set aside by proper direct proceedings, is simply voidable, and not void nor subject to collateral attack: See monographic note to Watt v. Brookover, 29 Am. St. Rep. 816, on judgments for or against deceased persons.

CARSON V. VICKSBURG BANK.

[75 MISSISSIPPI, 167.]

BENEFICIAL ASSOCIATIONS-CERTIFICATE IS PAYABLE ONLY TO BENEFICIARIES PROVIDED BY THE CHARTER OF THE ASSOCIATION.-If the charter of a beneficial association provides that an applicant for membership shall designate some person related to, or dependent upon, him for support, to whom the benefit shall be paid, that the amount of the benefit shall be held sacred as a legacy for the persons so named, and shall under no circumstances be appropriated to the payment of debts of the deceased member, and that if none of the designated beneficiaries shall be alive on the decease of the member, the benefit shall be paid to his heirs, and if there are none, the liability of the association shall cease and determine, a certificate cannot be pledged as collateral security for the payment of the member's debts, and if he causes his certificate to be surrendered, and designates a new

beneficiary for the purposes of having him apply the procceds to the payment of such debts, he will hold the proceeds of the certificate as a trustee for the widow and children of the deceased member.

ASSOCIATIONS-CHANGE

BENEFICIAL IN BENEFICIARY.-The right of a person designated as beneficiary in a certificate of membership depends on his continuance as such until the death of the member. Before that time the member may change the beneficiary, and thereby defeat his rights.

Miller, Smith & Hirsch, for the appellant.

Dadney & McCabe, and Shelton & Brunini, for the appellees.

170 TERRAL, J. This is a contest between the Vicksburg Bank, as complainant, and Mary A. Carson, respondent and cross-complainant, as to the application of the proceeds of a certificate of membership in section 34 of the endowment rank of the Knights of Pythias at Vicksburg, paid into court by the board of control of the supreme lodge of said order.

171 It appears from the pleading and evidence in the case that John C. Carson was, on the twelfth day of November, 1890, admitted to membership in section 34, Knights of Pythias, and a certificate thereof, in the sum of three thousand dollars, payable to Mary A. Carson, was issued to him; that said John C. Carson, having become indebted to John F. Halpin Company, an incorporated mercantile company, in a sum of money, largely exceeding three thousand dollars, and for the purpose of se curing said John F. Halpin Company its said debt, did, on the ninth day of May, 1891, at the request of said John F. Halpin Company, cause a change to be made in the beneficiary of his said certificate of membership, whereby J. K. Bruzelius was substituted for Mary A. Carson; that said Bruzelius was not intended to be the real beneficiary in the certificate, but was so named that the John F. Halpin Company might become the real beneficiary therein; that said Carson delivered said certificate of membership to John F. Halpin Company as collateral security for the debt due it by him; that the Vicksburg bank, by assignment, has become entitled to all the interest in and right to said endowment certificate as fully as the same was vested in John F. Halpin Company; that the John F. Halpin Company, from the time of the assignment to it as collateral security of said certificate of membership, paid to the Knights of Pythias all the dues and assessments of said John C. Carson up to the date of his death; and that John C. Carson died in the month of January, 1893, a member in good standing in said benevolent society.

It further appears that the defendant corporation denied any knowledge of the purpose of Carson in changing the bene- . ficiary from Mary Carson to Bruzelius, and there is no evidence that it had any notice or information of such purpose, though, perhaps, Maganus, the secretary of section 34, endowment rank, had good reason to believe that it was done for the purpose of making Bruzelius the nominal beneficiary, and for the purpose of passing it to the John F. Halpin Company, as collateral security. The three thousand dollars endowment was ready to be paid 172 by the defendant company, and by agreement of the parties was placed in the Vicksburg Bank, to abide the result of this suit.

In accordance with the act of Congress, entitled, "An act to provide for the creation of corporations in the District of Columbia by general law," approved May 5, 1870, Joseph T. K. Plant, and six others, filed in the office of register of deeds, in the District of Columbia, a certificate of association, to incorporate themselves and their associates as a benefit society, under the name of "The Supreme Lodge of the Knights of Pythias of the World." The charter and constitution of said association is incorporated in the record of this case, and at the time Carson was admitted a member, that part of the constitution which is material to this case is set out below, but at the time of the death of Carson that part of it between brackets had been repealed and annulled.

"Article XII.-Beneficiaries. Sec. 1. Each applicant for membership in the endowment rank shall designate in his application some person or persons related to, or dependent upon, him for support, as hereinafter provided, to whom the benefit shall be paid when due; and the name or names and the relationship of the person or persons so designated shall be inserted in the endowment certificate, except in case when the endowment is made payable to wife and children the names of the children may be omitted, and, in the event of such member's death, all surviving children of deceased shall be considered legal beneficiaries [provided, that an applicant may name as beneficiary his betrothed, his subordinate lodge, his endowment rank, section or a brother knight]. The interest of any person so designated, or their heirs, shall cease and determine in case. of his or her death during the lifetime of such member. Upon the death of a member of this rank, the benefit, as specified in the endowment certificate, shall be paid by the supreme secretary, by warrant on the endowment rank depositary, signed by

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