Reber v. Dowling

• Decision Date: 27 February 1888
• Citation: 3 So. 654,65 Miss. 259
• Court: Mississippi Supreme Court
• Parties: THOMAS REBER v. THOMAS J. DOWLING ET AL. and THOMAS J. DOWLING ET AL. v. THOMAS REBER

3 So. 654

65 Miss. 259

THOMAS REBER v. THOMAS J. DOWLING ET AL. and THOMAS J. DOWLING ET AL. v. THOMAS REBER

Supreme Court of Mississippi

February 27, 1888

October 1887

APPEAL and CROSS-APPEAL from the Chancery Court of Adams County HON. WARREN COWAN, Chancellor.

In 1855, one Thomas Dowling died leaving a will with a provision as follows: "Be it known that I, Thomas Dowling, of the city of Natchez, State of Mississippi, of sound mind, that I have this day made up my mind to dispose of my property at the corner of Pine and Franklin streets in way following, to wit: William Fielding Cullen, John Belzer Cullen, Thomas Josh Dowling, Annie Celine Dowling, each to have an equal share of that property, but is never to be sold, is to remain in the family forever, and when either of them dies, then for his or her share to be divided equally among the rest." * * * * * Before 1860 William Fielding Cullen died; in 1862, Annie Celine Dowling died; in 1873, John Belzer Cullen died leaving a widow, Theresa A. Cullen, and three children: John Belzer Cullen, Jr., born Nov. 6, 1862; Emma V. Cullen, born March 2, 1867; and Rosa G. Cullen born Aug. 22, 1869; who are still living. Thomas J. Dowling still survives.

In 1882, the property devised as above stated was sold to the State for taxes. The tax collector's certificate to the list of lands then sold to the State was as follows:

"THE STATE OF MISSISSIPPI, ADAMS COUNTY.

I James W. Lambert, Sheriff and Tax Collector in and for said county, do hereby certify that the following is a true and correct list of lands sold to the State of Mississippi on the first Monday, the 6th day of March, 1882, for delinquent taxes due thereon for the fiscal year 1881, pursuant to the requirements of law.

JAMES W. LAMBERT,

Sheriff and Tax Collector of Adams County, Miss."

The list referred to in this certificate embraced a lot described as "one lot and the buildings thereon, S.W. corner Franklin and Pine Streets." It also stated that this property was assessed to Thos. J. Dowling, on the 6th of March, 1882, and set forth the nature and amount of the several taxes for which the lot was sold.

On April 1, 1887, Thomas Reber purchased this property from the State, and receiving a deed describing the land as in the list of lands sold to the State. On April 27, 1887, Reber filed this bill to confirm his tax title, making Thos. J Dowling, Theresa A. Cullen and her children, parties defendant. Emma V. Cullen and Rosa F. Cullen, minors, being admitted to defend, answered by next friend, claiming an interest in the land by virtue of Thomas Dowling's will, and tendering the delinquent taxes and statutory damages to the complainant. Thomas J. Dowling answered setting up various defences, among others that the description in the deed to the State was insufficient and void.

It appeared in evidence that the property had been assessed to T. J. Dowling, alone, as is described in the deed. It was also shown that no other property was assessed to said Dowling in the County of Adams, and that that assessed was in the City of Natchez; that there were no streets of the same names as those in the description, in Adams County, except in the City of Natchez. The correct and accurate description of such property was also known.

The title of complainant, Reber, was confirmed as to an undivided half interest claimed by Dowling, and it was ordered that Reber quit-claim to Theresa A., Emma V. and Rosa G. Cullen the other undivided half on payment of one-half of the taxes and statutory damages. From this decree the complainant, and the defendants, Dowling, Theresa A., Emma V. and Rosa G. Cullen, appealed.

Reversed and decree here as indicated.

R. E. Connor and Claude Pintard, for the appellant and cross-appellee.

1. As there was no contest in the court below as to the question of the validity of the tax title, the only question in this case is whether the minors have a right to redeem the whole property, one-half, or whether they have the right to redeem at all.

We hold that the minors (the Cullen heirs) have no interest in the property, and hence have no right to redeem any portion. If Thomas J. Dowling was the sole owner of the property under the will of Thomas Dowling, by right of survivorship, then the tax title to the whole property should have been confirmed; and we will now proceed to discuss the question of survivorship.

The first clause of the will of Thomas Dowling creates an estate in common in the four devisees, to wit, Thomas J. Dowling, Selina Dowling, William Fielding Cullen and John Belzer Cullen. The subsequent clause, immediately following the first one, provides for a limitation in effect to the longest liver of said parties. The words share and share alike, or that the parties shall take an equal share, stamps the estate as an estate in common. Jarman on Wills, Vol. 2, p. 258.

2. Since the act of 1876, which is adopted in the Code of 1880 (Sec. 491), no matter how indefinitely land is...