Cheeks v. Herrington, 57665

• Decision Date: 27 April 1988
• Docket Number: No. 57665,57665
• Citation: 523 So.2d 1033
• Parties: Arthur Singleton CHEEKS and Calista Cheeks v. Mary Jo HERRINGTON and Odell Barnett.
• Court: Mississippi Supreme Court

Page 1033

523 So.2d 1033

Arthur Singleton CHEEKS and Calista Cheeks v. Mary Jo HERRINGTON and Odell Barnett.

No. 57665.

Supreme Court of Mississippi.

April 27, 1988.

Raymond Swartzfager, Jr., Laurel, for appellants.

Paul G. Swartzfager, Sr., Laurel, for appellees.

Before DAN M. LEE, P.J., and ROBERTSON and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

STATEMENT OF FACTS

On April 14, 1986 the Jones County Chancery Court entered judgment for the plaintiffs, Mary Jo Herrington and Odell Barnett, granting their petition for partition of a parcel of property located in Jones County, Mississippi. From this judgment the appellants, Arthur Singleton Cheeks and Calista Cheeks, appeal.

The property in dispute was originally titled in the name of Burkett B. Barnett and Sarah Barnett as tenants in common. It was their homestead. The Barnetts were married with no children of that union; however, Burkett Barnett had a son, Odell Barnett, by a former marriage. Burkett Barnett died intestate in the early 1950's survived by Sarah and his son, Odell. By virtue of the tenancy in common Sarah Barnett had a one-half undivided interest in the property. When Burkett died intestate his one-half interest descended to his son Odell as to a one-fourth interest in the property and his wife Sarah as to one-fourth in the property. Consequently, Sarah owned three-fourths interest and Odell one-fourth.

On September 29, 1970 Sarah conveyed the subject property by warranty deed to Arthur Singleton Cheeks reserving a life estate in herself. Odell did not join in the conveyance.

During 1976, this property was conveyed to another individual named Charlie Ellis by deeds from Arthur Cheeks and Sarah Barnett (Lipscomb), who had married Flem Lipscomb. Said Flem Lipscomb died prior to these deeds being executed and delivered. Charlie Ellis then reconveyed this property to Sara Barnett Lipscomb.

In 1979, Sarah Barnett Lipscomb conveyed the property to Arthur Cheeks and Calista Cheeks, appellants herein, by warranty deed, purporting to convey to them, as tenants in the entirety, "all of my right, title and interest."

The Cheeks had paid the taxes on this property since 1977 and at time of trial occupied the property as their homestead.

The trial court ordered partition and the appellants, Arthur and Calista Cheeks, appeal and assign the following as error:

1. THE LOWER COURT ERRED IN FINDING THAT ODELL BARNETT WAS THE HEIR OF BURKETT BARNETT.

2. THE LOWER COURT ERRED IN FINDING THAT LACHES OR EQUITABLE ESTOPPEL WOULD NOT APPLY AS A DEFENSE.

3. THE LOWER COURT ERRED IN FINDING THAT THE SUBJECT PROPERTY SHOULD BE PARTITED AND THE PROCEEDS DIVIDED BETWEEN THE PARTIES WITHOUT FIRST PROVIDING FOR OWELTY OR AN ACCOUNTING FOR IMPROVEMENTS MADE BY THE PRESENT TITLE HOLDERS AND THEIR SUCCESSORS IN TITLE.

4. THE LOWER COURT ERRED IN NOT ALLOWING THE APPELLANTS TO ENTER INTO EVIDENCE TESTIMONY AS TO IMPROVEMENTS THEY HAD MADE TO THE PROPERTY BASED ON THEIR GOOD FAITH BELIEF THAT THEY HAD FULL TITLE.

DID THE LOWER COURT ERR IN FINDING THAT ODELL BARNETT WAS THE HEIR OF BURKETT B. BARNETT?

The trial court found that Odell Barnett was the son of Burkett Barnett and inherited one-half of the one-half interest in the subject property owned by Burkett Barnett at the latter's death. The chancellor, therefore, ordered the property sold and the proceeds from the sale divided, one-fourth to Odell Barnett, appellee and three-fourths to the Cheeks, appellants.

There was no evidence in the record to support an argument that Odell was illegitimate and, in fact, there was ample evidence to show that Odell was the legitimate son of Burkett Barnett by a former marriage and that the community was aware of such fact. In fact, Mr. Cheeks himself testified that Burkett Barnett had a son who was never around. The chancellor found Odell to be the son and heir of Burkett Barnett. We uphold the chancellor in this regard. "Unless the chancellor's determination of fact is manifestly wrong this Court will uphold his decision" Dillon v. Dillon, 498 So.2d 328, 329 (Miss.1986); Dubois v. Dubois, 275 So.2d 100 (Miss.1973). The Court finds this assignment of error without merit.

DID THE LOWER COURT ERR IN FINDING THAT LACHES OR EQUITABLE ESTOPPEL WOULD NOT APPLY AS A DEFENSE?

The appellants contend that the lower court erred in holding that laches or equitable estoppel would not bar the appellees from bringing their petition to partition the subject property. Appellants further assert that the lower court failed to recognize the termination of Sarah Lipscomb's homestead interest in the property upon her marriage to Flem Lipscomb two years after Burkett Barnett's death.

Upon remarriage of a widow, her rights under Miss.Code Ann. Sec. 91-1-23 (1972) (preventing partition of homestead property) are terminated and the entire property becomes subject to partition by any and all of the other joint owners. Breland v. Bryant, 402 So.2d 838, 842 (Miss.1981); Jefcoat v. Powell, 235 Miss. 291, 108 So.2d 868 (1959); Medford v. Mathis, 176 Miss. 188, 168 So. 607 (1936). In light of this case law, Sarah Lipscomb's homestead interest terminated in approximately 1952 when she married Lipscomb. The appellants assert that this thirty three (33) year delay by the appellees in petitioning for partition constitutes a situation in which laches and equitable estoppel should be available defenses. This is not a correct statement of the law.

The right to partition property is absolute with the exception of the limitation placed on homestead property. According to Mississippi case law, "Possession, or the right of possession vested in the tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make." Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949); Garrett v. Colvin, 77 Miss. 408, 26 So. 963 (1899); Hathaway v. North, 190 Miss. 697, 1 So.2d 490 (1941); Daughtrey v. Daughtrey, 474 So.2d 598, 601 (Miss.1985). McConnell v. McConnell, 449 So.2d 785, 786 (Miss.1984) implies that a co-tenant has a right to force a partition of property citing as authority the following: Higginbotham v. Short, 25 Miss. (3 Cushm.) 160 (1852); Hathaway v. North, 190 Miss. 697, 1 So.2d 490 (1941); Garrett v. Colvin, 77 Miss. 408, 26 So. 963 (1899); Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58 (1949). In Blackmon v. Blackmon, 350 So.2d 44, 46 (Miss.1977) this Court cited Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195 (1944) which held that all that was necessary for a partition is "that the parties be co-tenants of whatever is to be partitioned."

In Steele v. Mack, 341 So.2d 1322, 1325 (Miss.1977) the appellee raised the affirmative defense of laches. This court stated, "There is no merit to the appellee's contention that Marie is barred by laches from demanding a partition. Mississippi law is clear that laches provides no defense in the absence of a showing of an unequivocal ouster." Hurst v. J.M. Griffin & Sons, Inc., 209 Miss. 381, 388, 46 So.2d 440, 442 (1950):

The term "ouster" is used primarily in cases involving a claim of adverse possession by a tenant in common. The meaning of, and what constitutes an ouster was set forth in Nichols v. Gaddis and McLaurin, Inc., 222 Miss. 207, 75 So.2d 625, (1955):

An ouster is the wrongful dispossession or exclusion by one tenant in common of his cotenants from the common property of which they are entitled to possession. An ouster cannot be proved merely by acts which are...