Hilbun v. Hilbun

• Decision Date: 21 January 1924
• Docket Number: 23745
• Citation: 134 Miss. 235,98 So. 593
• Court: Mississippi Supreme Court
• Parties: HILBUN v. HILBUN et al

98 So. 593

134 Miss. 235

HILBUN v. HILBUN et al

No. 23745

Supreme Court of Mississippi

January 21, 1924

Division A

Suggestion of Error Overruled Feb. 4, 1924.

APPEAL from chancery court of Jones county, Second District; HON. G C. TANN, Chancellor.

Suit by Mrs. M. C. Hilbun and others against J. W. Hilbun. From a decree for plaintiffs, defendant appeals. Affirmed in part and reversed and remanded in part.

Decree affirmed in part, and reversed and remanded in part.

Shannon & Schauber, for appellant.

We have endeavored to give the exact words of the witnesses on the material points in this case. After giving full weight to all the testimony, we do not think the cancellation of the deed in this case can be upheld, either upon the law or the facts. We appreciate that this court always proceeds slowly in reversing a chancellor on the facts, but in the case of Gillis, Guardian, v. Smith, et al. 114 Miss. 666, this court said: ". . . the Constitution invests us with appellate equity jurisdiction, and, in reviewing this record, we do so as chancellors, charged with the solemn duty of requiring the proof to measure up to legal standards. If, according to our view of the facts and the promptings of our conscience, the learned chancellor was manifestly wrong, then it becomes our plain duty to set aside the decree of the court below and apply the legal test as we see it. . . ." See, also, Wherry v. Latimer, 103 Miss. 534.

Complainants in their bill of complaint alleged that "they are entitled to have said land partited and sold because the said land is not susceptible of an equal division in kind." There was no testimony introduced whatever as to whether said land could be partited in kind or not. The law on this proposition is well settled. Shorter v. Lesser, 98 Miss. 706.

Jeff Collins, for appellees.

It is useless to discuss the numerous opinions of this court refusing to reverse the finding of a chancellor or of a jury upon question of fact, unless the testimony, when taken in the most favorable light for such finding, fails to support the finding, or the decision is manifestly wrong. The finding of the chancellor was not manifestly wrong on this question of fact.

With reference to the second proposition: namely, that the testimony of complainants was not sufficient to show that this land was not susceptible of an equal division in kind, which would render it necessary to sell it in order to have a just division, we desire to say that there was no such contention as this made in the lower court, and, even if there had been, the court decreed that complainants were the owners of a three-ninth's interest, one-ninth each, in the land above described; and whether the testimony is sufficient or not that is no reason why the entire decree should be overturned by this court, and the whole case be tried anew. This court will only decree that the case be affirmed and remanded for further testimony as to how the division shall be made. Shorter v. Lesser, 54 So. 155

Argued orally by Chas. R. Shannon, for appellant, and Jeff Collins, for appellees.

OPINION

ANDERSON, J.

The appellees by their bill in the chancery court of Jones county sought to cancel a deed through which appellant claimed title to one hundred and twenty acres of land so far as it stood in the way of the claim of each of appellees to one-ninth undivided interest in said land. Appellees charged in their bill that said deed was procured by fraud, and also that the grantor therein was mentally incapable of making the deed at the time of its execution, and...