Carter v. Ford

• Decision Date: 05 June 1961
• Docket Number: No. 41888,41888
• Citation: 130 So.2d 852,241 Miss. 511
• Parties: Mamie Cross CARTER v. Aaron L. FORD.
• Court: Mississippi Supreme Court

Page 852

130 So.2d 852

241 Miss. 511

Mamie Cross CARTER v. Aaron L. FORD.

No. 41888.

Supreme Court of Mississippi.

June 5, 1961.

John B. Gee, Vicksburg, for appellant.

Aaron L. Ford, Jackson, for appellee.

LEE, President Justice.

Aaron L. Ford, the owner of a 45/56 interest in the 216 acres of land, described in the bill of complaint, alleged that, on account of the nature of the land and the lack of improvements, it would be impossible to partite the same in kind, and he therefore prayed for a sale and division of the proceeds.

Mamie Cross Carter, the owner of an undivided 7/56 interest therein, by her answer, denied that the land could not be divided in kind, and prayed specially for such division.

Four parties, named defendants, to wit; Willett Richardson Taylor, Lucille Richardson Lewis, Nellie Mae Richardson Gilmore, and Eliza Richardson, each owning a 1/56 interest, failed to appear, and a decree pro confesso and final decree were rendered against them.

On the issue of whether the land is susceptible of division in kind, the petitioner introduced three witnesses, Richard Prassel, a surveyor, who was also engaged in farming and stockraising; Major J. B. Luter, a real estate salesman; and J. R. Shuff, a farmer, who has also worked with the Soil Conservation Service.

The property, situated about eight miles from the Town of Edwards, was viewed by these witnesses at the same time. Although the weather had been dry for several weeks, they said that they could not drive their car all of the way to the property.

In Prassel's opinion the tillable part of the tract amounts to only 23 or 24 acres, and the residue is timberland, partly or wholly in swamp. The high land is along the bank of Big Black River, which forms the western boundary. He saw 'a good bit' of pulpwood, and estimated that there were three or four trees of low grade merchantable timber per acre on the swamp tract. If all of the land should be deemed of the same value, a 1/56 interest would be about 3.85 acres, a 7/56 interest would be about 27 acres, and the 45/56 interest would amount to 173.57 acres. There are no improvements. In his opinion the land is suitable for growing timber and pasture. He thought that the land would be hard to divide because of the difference in its nature, and the necessity to cross other property; but he said that a tract of 173 acres could be set off separate from the other land and have comparable value. In his opinion, the cost of a survey to effect a division would run from $700 to $1,000.

Luter's evidence was along the same line. He thought that the property would be worth more as a whole tract ant that a man could not make a living on one-half or two-thirds of it. He was asked if it could be divided so that several tracts would have about an equal amount of the different types of land, and he said, 'You could divide it up'; but he then said he did not know how to get an event valuation on each tract.

Shuff's evidence as to location and nature was substantially the same as the other two witnesses. He admitted that the land could be separated and divided into several tracts.

In the opinion of these three witnesses, the land was worth from $14 to 17 an acre.

Mamie Cross Carter testified that she was born and reared on this land. When she lived there, row crops were grown and she worked in the field. She left the place in 1927, but expects to retire in about three years, and wants to farm her part of the place.

Ike Richardson, a cousin of Mamie, testified that he farmed the place from 1926 until 1948; that he had about 25 acres in cultivation, and grew cotton, corn, peanuts, etc.; and that the Biedenharn farm has cotton which is growing less than one hundred yards from the east line of the Richardson tract.

G. E. Strickland of Vicksburg, Mississippi, an engineer and surveyor for twenty-five years, testified that he went completely around and through this tract of land several times, and found that it contained about 216 acres. He offered a map which he had made of the area. He also used and offered in evidence a Government quadrangle sheet of the area. According to this map, it is at least one-half mile from the east boundary of the Richardson tract before any change in elevation is noted. The map also shows a road, leaving Highway 80 at a point south of Smith Station, and leading to the property. The witness said that he drove directly to the southeast corner of the place by following a road used by Mr. Biedenharn and others. He said that this tract of land is susceptible of partition in kind, and that it would be no problem to him at all to divide it. He gave a detailed statement as to how this could be done. At present, there is timber on about two-thirds of the place. The other one-third is in open fields and had been cultivated in the past. Some of it is now grown up in patches of gum timber. Along the southeast corner, cultivated fields are within one hundred to one hundred and fifty feet of this land. In his opinion the land is worth $50 an acre, excluding the timer. He could divide the land into five or six separate tracts, if done in the winter, for approximately $400; and, if done in the summer, for between $400 and $500.

The record discloses that the land, when bid in at the sale by petitioner Ford, brought $6,000.

In the case of Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519, this Court said: 'The common law gave the joint owners of land a right to have a partition in kind; and the right of selling the land, and dividing the proceeds, given by the statute, is an innovation upon the common law; and, as it takes away from the owner the right to keep his freehold in kind, it must be strictly pursued, and it must appear from the record that an equal division cannot be made, or that a sale of the land will better promote the interest of all parties than a partition in kind', citing authorities. There was no proof of the necessity or propriety of a sale, and the cause was reversed.

In the case of Smith v. Stansel, 93 Miss. 69, 46 So. 538, 539, there were two parties, each of whom owned an undivided one-half interest in 100 acres of land. There was a prayer for partition, or, in the...