Gilleylen v. Martin

Citation73 Miss. 695,19 So. 482
CourtMississippi Supreme Court
Decision Date02 March 1896
PartiesH. S. GILLEYLEN v. DEWITT C. MARTIN ET AL

March 1896

FROM the chancery court of Monroe county HON. BAXTER MCFARLAND Chancellor.

There was a former appeal in this cause, the same being from the decree of court below sustaining a demurrer of the defendants based on the statute of limitations. That decree was reversed and the cause remanded. Martin v. Gilleylen, 70 Miss. 324. The complainants then amended their bill, making it a bill of review pure and simple, by setting up only those errors apparent on the face of the record of the original cause. The defendants answered, and, on the hearing, the court sustained the bill of review, and set aside all the proceedings in the original cause, and rendered a new and different decree therein.

The original proceeding was one for partition of the land in controversy or a sale thereof for division of proceeds, and had resulted in a sale to the defendant, H. S. Gilleylen, who had subsequently sold and conveyed the same to one Burkitt who had, in turn, conveyed a part thereof to certain other defendants. The land, at the time he died intestate, in 1874 was owned by one John Martin, who left a widow and four children. H. S. Gilleylen, before bringing the partition suit, had purchased the shares of two of the heirs and the widow's interest. The bill avers, along with many other errors in the original proceeding, that the dower of the widow had not then been allotted to her or barred by limitation, and the answers do not deny this allegation. The decree from which the present appeal is prosecuted directs an allotment of one-third of the land as subject to the dower interest acquired by Burkitt in the manner before stated, and a partition of the other two-thirds between the complainants and Burkitt, if the same could be fairly and equitably divided into two equal parts, and, that if not, that the commissioners appointed to make the partition should report accordingly to the next term of court. This decree was rendered on April 25, 1895, while that sustaining the bill of review was rendered on October 3, 1894. The present appeal is from both decrees.

Appeal dismissed.

Gilleylen & Leftwich, for the appellants.

The appellees were not entitled to have the partition proceedings set aside on the idea that H. S. Gilleylen did not own, as claimed therein, an undivided three-fifths interest in the land, but only an undivided one-half interest and the widow's dower. The fact is, the bill in the partition suit was not filed until 1882, when dower had been abolished, and it does not name the day, month or year of the death of John Martin, the father of complainants. The facts that he died previous to the adoption of the code of 1880 and that the widow owned only a dower interest, do not appear in the original proceedings for partition, but for the first time in those inaugurated by the bill of review. If he died after the adoption of said code, the widow, of course, inherited a child's part, or a one-fifth interest in the land as tenant in common, and there was no question of dower in the case.

Counsel also discussed at length the other objections to the validity of the partition proceedings, urged by appellees, but not passed upon in the opinion.

E. H. Bristow, for the appellees.

1. The right of the widow to dower was a genuine, subsisting right in 1882, not then barred by the statute of limitations, and, granting that this right was transferable in law, and was, in fact, transferred to Gilleylen, he then owned the right of dower, which was an estate for the life of the widow in one-third of the land, including the dwelling, etc. The dower of the widow had never been allotted, and, clearly, the land was not susceptible of partition. Code 1871, § 1809; Code 1880, § 2533; Fox v. Coon, 64 Miss. 465; Wood v. Bryant, 68 Ib., 198; Freeman on Co-tenancy and Partition, §§ 432, 472.

2. But the unassigned dower of the widow was not transferable so as to put Gilleylen in her shoes. She could convey but an equity. Rule v. Broach, 58 Miss. 552; Wallis v. Doe, 2 Smed. & M., 220; 5 Am. & Eng. Enc. L., 906. The widow can convey by deed so as to warrant a court of equity to have the dower allotted to her assignee, or, rather, to have it allotted to her and then transferred to the assignee. 2 Scribner on Dower, pp. 37-40. But a mere legal assignment or deed does not convey any estate, any right of possession; certainly not such a right as can be partitioned under our statute. An unassigned dower is such a charge or incumbrance as will prevent a partition. It is not vendible under execution, or under any decree of a court. Ligon v. Spencer, 58 Miss. 37.

3. On a bill of review (and more especially in a partition suit) if the bill be sustained, everything is set aside and annulled and such new decree made as should have been made at first. In other words, the case is heard for the first time. Enochs v. Harralson, 57 Miss. 465.

OPINION

WHITFIELD, J.

The decree of October 3, 1894, is a final decree, from which an appeal may be prosecuted. This is settled in Denson v. Denson , 33 Miss. 560, the court saying: "There can be no doubt that it [an appeal] would lie to the decree dismissing the bill of review." See, to same effect, Belt v. Davis , 1 Cal. 134; McCall v. Hitchcock , 70 Ky. 615, 7 Bush 615; Harvey v. Fink , 111 Ind. 249, 12 N.E. 396; 2 Enc. Pl. & Prac., p. 109.

In Cole v. Miller , 32 Miss. 89, the court say: "From these characteristics of a bill of review, it is evident that it does not constitute a part of the original cause, and, although it has reference to it, yet that it is an independent proceeding."

In Denson v. Denson, supra , where there was a preliminary objection that the writ of error was void, because it "embraced both the original decree establishing the indebtedness of the administrators and that dismissing the bill of review, " the court held the objection untenable, observing, through the same judge who delivered the opinion in Cole v. Miller, supra : "Although such a bill is, in certain respects, an independent proceeding, yet it has direct reference to the original decree, and brings up for consideration the errors therein contained. If the bill of review be properly filed, so as to give the court jurisdiction of it, . . . the consideration of it, upon writ of error, necessarily involves the errors in the original decree, without embracing that decree specially in the writ . . . But no sufficient reason is perceived why he should not be permitted to have the question of the propriety of the filing of his bill of review, as well as the matters of error in the original decree, examined by means of one and the same writ of error, for the writ, in either respect, has reference to the same substantial thing--the errors in the original decree; and in such a case, though there was error in dismissing the bill of review for noncompliance with the rules regulating the filing of such bills, yet if, upon consideration of the original decree and proceedings, there was found to be no error upon their face, the decree would be...

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