Cooper v. Fox

• Court: Mississippi Supreme Court
• Writing for the Court: COOPER, J.
• Citation: Cooper v. Fox, 67 Miss. 237, 7 So. 342 (Miss. 1890)
• Decision Date: 10 March 1890
• Parties: MIRIAM COOPER v. ELIZABETH FOX ET AL

7 So. 342

67 Miss. 237

MIRIAM COOPER v. ELIZABETH FOX ET AL

Supreme Court of Mississippi

March 10, 1890

FROM the chancery court of Lawrence county, HON. WARREN COWAN Chancellor.

The facts are sufficiently stated in the opinion.

Decree reversed and case dismissed.

A. C McNair, for appellant.

Before complainants can obtain partition they must show; [1] that Mrs. Prestidge died seised and possessed of the land, and [2] that complainants and defendants have a joint interest in the land. If they fail on either of these points, they lose.

The testimony of impartial and disinterested witnesses establishes that John W. Prestidge and William Cooper took possession of the land in their own right, and paid the administrator, Dickerson, for it. They have occupied the land openly and notoriously under claim of ownership since 1854. Their possession ripened into title by prescription long before the death of Mrs. Prestidge, and it is immaterial whether they received the deeds or not, as they went into possession ill their own right, and not as tenants of Mrs Prestidge, and were not trespassers, Niles v. Davis, 60 Miss. 750; Davis v. Bowmar, 55 Ib. 671; Jones v Brandon, 59 Ib. 585.

In fact the chancellor decided that the legal title to the property in controversy was in William Cooper by prescription, and it was for this cause alone that he rendered a decree for defendant, William Prestidge. Complainants have not appealed from the decree in favor of Prestidge, and this is strongly suggestive of the slight faith the solicitor for appellees has in his cause. The chancellor thought that the legal title was outstanding in William Cooper, and the reason assigned by him for a decree against Mrs. Cooper was that she was a joint tenant with complainants in the laud, and therefore could not set up an outstanding title against them. When it is determined under the facts of riffs case that complainants and William Prestidge are not tenants in common, it follows that the complainants' cause against Mrs. Cooper also is gone, for the reason that, according to their own claim, it destroys the unity of possession and title between them and Mrs. Cooper, as well as between them and William Prestidge. They rely on the same facts to recover of the one that they do to recover of the other. Before complainants can recover, they must show a clear and undisputed title to the land. This is the rule in equity, except where changed by the statute. Ingram v. War, 5 S. & M. 746; Shearer v. Winston, 33 Miss. 149.

The only change in the rule by our statute [Code 1880, § 2576] is that as between the parties to the suit, the legal and equitable title may be tried in a determination of a partition suit. The object of this statute is to avoid the necessity of resorting to a court of law to settle the legal title. As to the necessity of complainants proving title and other joint relations with defendant to the property, the law remains unchanged. When complainant files his bill for partition, the right to such relief will depend upon a joint ownership between the complainant and the defendant. Spight v. Waldron, 51 Miss. 356.

The rule of law prohibiting an assailment of the common source of title or the proving of an outstanding paramount title in a stranger applies only where there is a relation of some sort between the parties to the property, and where the assailant is in the possession of the property. If any such relation exists, and the defendant is not in the possession of the property, and does not claim it, then the rule has no place and the defense is maintainable. See Nugent & Mc Willie v. Powell, 63 Miss. 99.

Longino & Weathersby, on the same side.

R. H. Thompson, for appellees.

But for one line in the answer the complainants would be entitled to a decree on the pleading. That line is the fiat denial that the parties to the suit are tenants in common. This is overcome by the record evidence, and the admitted fact that complainants and defendants are the heirs of Anna Prestidge, deceased. The only way this case is sought to be met is by setting up an outstanding title in a stranger. Had the case been set for hearing on the bill and answers, it would have probably been parallel with Ingram v. War, 5 S. & M. 746.

In that case the petition did not make out a prima facie case, as does the case now before us. We have presented here the question whether in a partition suit brought by one or more of several heirs of a decedent against another or others, the defense can set up a paramount outstanding title in a stranger, with which they do not connect themselves, and thereby defeat a partition. Reason and authority answer negatively. Complainants are entitled as against defendants to have allotted to them a separate tract of land that they may use if necessary, in ejectment for such part only. The law will not force complainants to bring an ejectment for a particular interest in the whole. Some of the heirs, as in this case, might not desire a maintenance of ejectment, and might greatly delay and embarrass it. No harm can come from a partition. Defendants are but denying their own title for the benefit of a stranger. In an action of ejectment the outstanding paramount title could not be used as a defense, and there is no reason applicable in such a suit that is not applicable here. As between the litigants and parties to the suit, they are tenants in common having at least the right; of possession. See, Freeman on Cotenancy and Partition, § 152, and cases cited; Burleson v. Burleson, 28 Tex. 383.

As to the question of fact involved, if I am mistaken oil the leading proposition stated, it will be found that there is abundant testimony in the record to show that William Cooper's possession was not adverse, but in subserviency to Mrs. Prestidge's title, and he could not acquire title by prescription.

OPINION

COOPER, J.

The complainants and defendants are heirs-at-law of Mrs. Anna Prestidge, who died intestate, in December, 1873. The petition is filed for partition of certain lands, which it is alleged descended to the parties by the death of Mrs Prestidge. The defendant, Mrs. Cooper, is the daughter, and the defendants, William Prestidge and Mrs. More, are the grandchildren of Mrs. Anna Prestidge, the two latter being children of John Prestidge, deceased, who was a son of Anna.

The land described in the petition consists of a single tract but it is intersected by Fair river, about two-thirds being upon the north, and one-third...