Brown v. Wesson

• Citation: 114 Miss. 216,74 So. 831
• Decision Date: 16 April 1917
• Docket Number: 19021
• Court: United States State Supreme Court of Mississippi
• Parties: BROWN ET AL. v. WESSON ET AL

74 So. 831

114 Miss. 216

BROWN ET AL. v. WESSON ET AL

No. 19021

Supreme Court of Mississippi

April 16, 1917

Division B

APPEAL from the chancery court of Lee county, HON. A. J. MCINTYRE Chancellor.

Bill by W. D. Brown and others against J. W. Wesson, H. C. Stovall and another in which defendants named, answered with a cross-bill. From a decree dismissing the bill in part plaintiffs appeals and defendants cross-appeal.

Complainants filed their bill in the chancery court of Lee county, at the April, 1914, term, against the defendants H. C. Stovall, John W. Wesson, and Mrs. Mary Carruth, setting forth: That at the July, 1909, term the complainants in the present bill and Mrs. Mary Carruth, who was at that time Miss Mary Brown filed a bill in the chancery court of Lee county, praying for the partition of land belonging to their father George Brown, and mother, Mrs. E. C. Brown, which belonged to them in equal shares by the will of their parents. That at the September, 1909, term of the chancery court of Lee county, a decree was made by the said court for the partition of said lands which decree provided for partition in kind, and for the purpose of making a partition W. L. Joyner, G. W. Long, and J. S. Thompson were appointed commissioners. That these commissioners, with the assistance of a surveyor, made a partition of the said lands, and made a report thereof in writing, to which report a plat or map of the lands was attached. That in said partition, lands of the said two estates were intended and attempted to be set apart by allotting to Annie Lou Brown, Ruth Brown, and Mildred Brown, and the defendant Mary Carruth, in equal shares of approximately two hundred and ten acres each. That the commissioners attempted to lay off said lands in four equal divisions of approximately to hundred and ten acres each, divided by due east and west lines, which subdivisions were reported by the commissioners and numbered on the map 1 to 4, inclusive, beginning at the north end and going to the south boundary line of said tract. That the commissioners intended and attempted to allot to Annie Lou Brown share No. 1, being two hundred and ten acres off the north side of the said body; to another complainant, Ruth Brown, share No. 2, being two hundred and ten acres adjoining share No. 1 on the south; to the defendant Mary Carruth, lot No. 3, adjoining said lot No. 2 on the south, being two hundred and ten acres; and to Mildred Brown lot No. 4, being two hundred and ten acres on the south side of said tract of land, and being the balance of said tract. The bill sets out the description, as contained in the original report and decree, of each particular lot, being a description by metes and bounds; that the commissioners found in their report that each tract was valued at approximately eight thousand dollars except share No. 4, which was valued at seven thousand dollars with owelty against the tracts of land awarded to the male complainants to make up share to the value of eight thousand dollars. It is alleged that in making this division the commissioners and surveyor made mistakes by which lot No. 1 actually contained only one hundred and eighty-one acres; that share No. 2, to Ruth Brown, contained two hundred and six and seven tenths acres; that share No. 3, awarded to Mrs. Mary Carruth, contained two hundred and fifty-eight and four tenths acres, or forty-eight and six tenths too much; that share No. 4, assigned to Mildred Brown, contained approximately two hundred and ten acres, and was correctly described; that these errors occurred by reason of mistake in surveying the land, and were unknown to all the parties at the time of the making of the report and entering of the decree confirming the report; that two hundred and ten acres was approximately the real number of acres that should have been, and was intended to be, assigned to each of the said parties; that the mistake was not discovered until shortly before the filing of the present bill, when an accurate survey, by a highly competent surveyor, was made, by which it was shown that each share should be two hundred and nine and four tenths acres, and that on this basis the said tracts would be approximately equal in value, if share No. 4 was credited with the amount paid as owelty in the original decree; that if the original decree was permitted to stand there would be an injustice done to the parties by reason of the mutual mistake made in the original partition decree.

It was alleged that Mrs. Carruth had conveyed her lot or tract to Wesson and Stovall, and that they took under an agreement that there were two hundred and ten acres in the tract, or approximately that amount, and paid for the land on the valuation of two hundred and ten acres and with the belief that it only contained that amount of land; that they took the land subject to the decree, and had knowledge of the intention of the parties in making said division. It was alleged that, some time after the original division, the parties, through their brother, Mr. Brown, were in possession jointly and not in severalty, and the lands were leased out as an entire body and the income divided equally between the female complainants in the original bill. It is alleged: That the boundaries of the recent survey showed that some of the tracts would overlap; that is, in some of the tracts the same land would be embraced within the calls of more than one deed, leaving a body of disputed land called for by both deeds, and that by reason thereof there was an impossible partition. That the joint arrangement by which the lands were rented and the proceeds divided equally between the four female complainants of the original bill continued up to and included the year 1913, and that on the 10th day of January, 1914, Mrs. Carruth conveyed her share to Wesson and Stovall. It was alleged further that Wesson and Stovall had gone into possession, and had received the use and profits of forty-eight and six tenths acres more than their proper share, and that this was valued at a rental value of three hundred and fifty dollars per annum.

There was a prayer for a correction of the boundaries of the several tracts to conform to the real facts, and a prayer for judgment against Wesson and Stovall for the rental value of the excess of land used and occupied by them.

Wesson and Stovall answered the bill separate from Mrs. Carruth; admitting the description of the land contained in the original bill; admitting that the commissioners in the partition suit laid off and allotted to the complainants the lots by numbers as alleged in the original bill, but denying that the commissioners and surveyor made the errors set out in the original bill; denying that it was the intention of the parties to have each tract contain equal acres; denying that the recent survey was a true and correct survey; denying the allegation as to what would be the true and correct survey of the tract, as set forth in the bill. They denied, also, that there was an overlapping of the said lands. They admit purchasing from Mrs. Carruth her share, and admit the description contained in the deed, as set forth, but deny that Mrs. Carruth sold her land to the said Wesson and Stovall with the distinct understanding that she was selling approximately two hundred and ten acres; deny that they bought the said tract of land subject to a survey in order to ascertain the metes and bounds as alleged; deny the right of the complainants to have the original decree amended to correspond to the intention of the parties; and plead the statute of limitation of two years as against a bill of review. They also plead that Annie Lou Brown, minor, defendant, was improperly joined in the cause, and that she had no real interest in the controversy of this suit; and plead that the complainants W. D. Brown, Levy S. Brown, and Mille Brown were improperly joined. They make their answer a cross-bill as against Mrs. Carruth, Ruth Brown and Dr. Roy Carruth husband of Mary Carruth, and pray that the claim of Ruth Brown, for overlapping land, be canceled as a cloud on their title.

Mrs. Carruth answered separately, and admits the filing of the original bill, and the laying off of the land by the commissioners, but denies that the commissioners made the mistake alleged in this bill, and denies that the commissioners attempted or undertook to assign to each of the said parties equal acreages of land, but only tried to assign tracts of land of equal values. She denies the correctness of the recent survey as to what would be embraced in a correct division so as to produce equal areas, as set forth in the bill; denies that the description contained in her deed overlapped the lot of Ruth Brown, as alleged in the bill; and denies that, until her marriage, W. D. Brown, her brother, had the control of the shares of land, as alleged in the bill; admits conveying her interest to Wesson and Stovall; and admits that she sold to Wesson and Stovall with the understanding that she was conveying them her share of the land with the understanding that there were approximately two hundred and ten acres; and admits that Wesson and Stovall had gone into possession of said tract conveyed to them; and denies that the complainants have the right to have the decree originally entered interfered with.

There was much testimony taken, and the chancellor found the facts to be, that there was a mistake in the original partition that it was the intention of the parties in interest in the original suit to have the four female complainants in the original suit assign equal areas or acreages of land, and found that the attorneys in the case, and the court, understood, at the time, that they were being awarded equal amounts of land; that Wesson and Stovall...