Foster v. Gulf Coast Canning Co.

• Decision Date: 19 February 1894
• Citation: 15 So. 931,71 Miss. 624
• Court: Mississippi Supreme Court
• Parties: MARY J. FOSTER v. GULF COAST CANNING CO. ET AL

15 So. 931

71 Miss. 624

MARY J. FOSTER v. GULF COAST CANNING CO. ET AL

Supreme Court of Mississippi

February 19, 1894

FROM the chancery court of Harrison county, HON. W. T. HOUSTON Chancellor.

Mary J Foster, the appellant, exhibited this bill against the Gulf Coast Canning Company and others, alleging that she is the real owner of an interest in the lands in controversy; that the defendants also assert a claim thereto, which is a cloud on her title, and which she prays to have canceled. The bill sets out with great particularity complainant's title, as well as that asserted by the defendants, but, in view of the opinion, which passes upon a single question, it is only necessary to state that the title of the defendants was derived through a sale under a decree of the chancery court in a suit to sell the lands for partition of the proceeds. The complainant, however, was not a party to the partition suit.

The defendants demurred to the bill, assigning, among other grounds, that the suit was barred under § 2568 and also under § 2693, code 1880. The first-mentioned section, in the chapter on partition, is as follows:

"§ 2568. The final decree of the chancery court in such case shall ascertain and settle the rights of the parties, and shall constitute an instrument of evidence in all questions as to the title of the lands which may be the subject of such decree, in all courts, and shall be conclusive as to the rights of all parties to such suit, subject to the provisions of this act, and subject to appeals and bills of review, as in other suits in the chancery court." The other section, in the chapter on limitation of actions, is as follows:

"§ 2693. No action shall be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith, and the purchase-money paid, unless brought within two years after possession taken by the purchaser under such sale of such property."

The demurrer was sustained, and the bill dismissed, and from this decree complainant appeals.

Decree reversed, demurrer overruled and cause remanded.

Fred Clark and E. E. Baldwin for appellant.

This is in no sense a bill of review. Appellant was not a party to the partition suit. She was a non-resident, and it is not even shown that she knew of the pendency of such a suit. 2 Daniel on Chancery Pleading, § 1627.

The complainant asserted title adversely to the parties to the partition record, and is now seeking to have her title finally established and adjudicated. She does not set up any error in the partition proceedings, and does not claim relief from the final decree in that case on account of any newly discovered evidence, but, as a stranger to that proceeding she now exhibits an original bill to establish her rights.

Section 2693, code 1880, does not apply. It merely makes the title acquired in partition proceedings good as against the parties to the suit. Besides, that section applies solely to partition suits. Martin v. Gilleylen, 70 Miss. 324.

Nugent & Mc Willie, for appellees.

If, in Martin v. Gilleylen, 70 Miss. 324, this court intended to say that § 2693, code 1880, has no application whatever to titles derived under sales in partition...