Cotton v. Cash

• Decision Date: 28 November 1904
• Court: Mississippi Supreme Court
• Parties: JOHN A. COTTON v. MATTIE J. CASH

37 So. 459

85 Miss. 29

JOHN A. COTTON v. MATTIE J. CASH

Supreme Court of Mississippi

November 28, 1904

FROM the chancery court of Noxubee county, HON. JAMES F. MCCOOL Chancellor.

The appellee, Mattie J. Cash, was complainant, and John A. Cotton and others, appellants, were defendants in the court below.

Mrs Hanna W. Cotton died in 1903, seized and possessed of certain lands in Noxubee county. Her heirs were John A. Cotton and Mrs. Mattie J. Cash, her children, and W. M. Taylor, George Taylor, and Mrs. Florence Hunter, her grandchildren, and Willie Clearman, a minor, her great-grandchild. A short time before her death she made a deed to a part of the land to appellant, John A. Cotton. After her death, appellee, Mrs Mattie J. Cash, filed a bill in the chancery court of Noxubee county against the other heirs to have the deed made to John A. Cotton set aside on the ground that it had been obtained by undue influence and fraud, and for a partition, alleging that the Taylor heirs and Willie Clearman owned together a one-ninth interest in the land. Some time after the bill was filed, Mrs. Cash and John A. Cotton entered into an agreement to have an amicable partition made of the land, and commissioners were agreed on to make the partition. This was done by the commissioners, and a certain part of the land allotted to Mrs. Cash, and the remainder to John A. Cotton no part of it being allotted to the other heirs of Mrs. Cotton. The commissioners made report to the chancery court at the next term, when Mrs. Cash made a motion to confirm the action of the commissioners; and on this motion the court rendered a decree confirming the report of the commissioners and assessing the costs, which included an attorney's fee to complainant's attorney, against Mrs. Cash and John A. Cotton equally. From that decree John A. Cotton appeals.

Reversed and remanded.

A. T. Dent, and J. E. Rives, for appellant.

Brame & Brame, for appellee.

OPINION

TRULY, J.

The bill of complaint filed by appellee avers that the four heirs of Mrs. Matura Taylor, deceased, who are named in the bill are the owners of an undivided one-ninth interest in the lands sought to be partitioned herein, and this averment is nowhere in the record denied. These heirs, one of whom is a minor, were made defendants to the bill of complaint, and process was prayed for them. It was therefore error in the court below to render a final decree...