Martin v. Gilleyler

• Decision Date: 16 January 1893
• Citation: 12 So. 254,70 Miss. 324
• Court: Mississippi Supreme Court
• Parties: DEWITT C. MARTIN ET AL. v. H. S. GILLEYLEN ET AL

12 So. 254

70 Miss. 324

DEWITT C. MARTIN ET AL. v. H. S. GILLEYLEN ET AL

Supreme Court of Mississippi

January 16, 1893

FROM the chancery court of Monroe county, WILEY H. CLIFTON, ESQ. a member of the bar, presided as special chancellor by agreement of the parties. HON. BAXTER MCFARLAND, chancellor having been of counsel, was disqualified.

On September 12, 1882, under a decree in a partition proceeding in the chancery court of Monroe county, certain land, in which the appellants were tenants in common, was sold for a division of proceeds. The sale was reported to the court, and approved March 12, 1883. At the sale the appellee, H. S Gilleylen, who was complainant in the partition suit purchased the land. On August 27, 1890, the bill in this case was filed by appellants to review the proceedings and decree in said partition suit. One of the complainants had just come of age, and the other was still a minor at the time of filing the bill of review. They alleged various errors in said original proceedings. A demurrer to the bill was overruled, and the defendants answered, setting up, among other things, the statute of limitations of two years, under § 2693, code 1880. Afterwards, by agreement, the cause was submitted for trial, in vacation, on pleadings and evidence before W. H. Clifton, Esq., a member of the bar, who was selected as special chancellor, the Hon. Baxter McFarland, chancellor, being disqualified, having been of counsel. After the cause had been argued, and before decree, the solicitors for complainant made a motion to remand it to rules, in order to take further testimony, and, in support of this motion, filed affidavits setting out certain newly-discovered evidence alleged to be important. The special chancellor overruled this motion, reciting in the order that he was of opinion that complainants were barred by the statute of limitations of two years, above mentioned, and for this cause alone the motion was overruled. Thereupon a final decree was rendered dismissing the bill and taxing complainants with costs, from which this appeal was taken. The record shows that one of the appellants was summoned by publication in the original proceedings.

Reversed and remanded.

E. H. Bristow and Mayes & Harris, for appellants,

Each filed a brief, in the main relying upon the same authorities, as to the question decided by the court making the following points:

1. Section 2693, code 1880, refers alone to original proceedings, and is not applicable to this case. Section 2681 applies. This, being a bill of review, is not an original proceeding, but is a continuation of the old cause. Story's Eq. Pl., § 403; 2 Daniell's Ch. Pl. & Pr., p. 626; McLemore v. Railroad Co., 58 Miss. 514; Vaughn v. Hudson, 59 Ib., 421.

In all cases where § 2693 of the code has been applied, the action was original. See 52 Miss. 118; 53 Ib., 665; 54 Ib., 289; 56 Ib., 10; 61 Ib., 504; 65 Ib., 288; 66 Ib., 399.

There are four sections of the code of 1880 to be considered, namely, §§ 2681, 2682, 2693, 1955. These must be construed in pari materia as one statute to carry out the intent of the legislature. 6 Ind. 354; 10 Ohio 173; 14 B. Mon. (Ky.), 266; 20 Texas, 355; 14 La. Ann., 113; 30 Cal. 427; Sedgwick on Stat. Con., 209, 212.

Our construction does not make § 1955 an exception to § 2693, and we submit that it is consonant with the policy of courts of chancery in making decrees affecting the rights of infants, and with our legislation in saving their rights for a short period after majority.

Gilleylen & Leftwich, for appellees.

Appellants are barred by § 2693, code 1880, which cures all defects before or after the decree, unless suit be brought within the time limited. Morgan v. Hazlehurst Lodge, 53 Miss. 665.

This is in accordance with decisions in other states having similar statutes. 9 Cush. (Mass.), 223; 13 Ind. 105; 13 Wis. 245; 28 Iowa 188.

The statute applies, though the court was without authority to appoint the guardian who made a sale (54 Miss. 289; 61 Ib., 504); and so, where the defendant had no notice (56 Ib., 10); and where the sale is made in disregard of the constitution (66 Ib., 399).

The case comes clearly within the provisions of § 2693. The purchase-money was paid in good faith, and possession of the property taken by the purchaser. The case illustrates the beneficial character of the statute. Defendant had been in possession for years, and had made valuable improvements.

There is no authority for the proposition that § 1955, code 1880, is applicable.

The case of McLemore v. Railroad Co., 58 Miss. 514, was decided on facts existing prior to the statute on this point. See Morton v. Carroll, 68 Miss. 699.

While the case was held to be barred by § 2693 of the code, yet we submit with confidence that, apart from this, the decree is correct.

OPINION

WOODS, J.

Bills for partition, at common law, were of infrequent occurrence and applicable only in a solitary case--in proceedings for division of lands held in coparcenary. Under our laws, partition of lands held by joint-tenants, tenants in common and coparceners having an estate in possession, and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by a decree of the chancery court. Adults, minors and persons non compotes mentis may all be parties complainants or respondents, and the title as well as right of possession may be adjudicated and finally determined between them in the partition proceedings. It has become a favored method in our system of jurisprudence of conveying and fixing title in the endless and constantly recurring instances of landed estates held in common. Vast proportions of the real estate in our borders are held under titles declared in partition proceedings. The design of our legislation has been to enlarge the scope of the operation, and amplify and simplify the means of the application, and to dignify and make effective the results attained in all partition proceedings. The subject is segregated from and lifted out of our general act in relation to chancery courts, chapter 59, code 1880, and is given an independent and distinct position in chapter 71. The proceeding has its own separate and clearly-defined rules and regulations, apart from and disconnected with the general chancery law of the...