Shorter v. Lesser

• Decision Date: 13 February 1911
• Citation: 54 So. 155,98 Miss. 706
• Court: Mississippi Supreme Court
• Parties: RAIFIELD SHORTER v. LEO LESSER

54 So. 155

98 Miss. 706

RAIFIELD SHORTER v. LEO LESSER

Supreme Court of Mississippi

February 13, 1911

October 1910

APPEAL from the chancery court of Tunica county, HON. M. E. DENTON Chancellor.

Bill by Leo Lesser against Raifield Shorter for partition. From a decree ordering the sale of the land for partition, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

F. A Montgomery, for appellant.

The question is, has this appellant, or not, the right to have his interest in the land set aside to him in kind when it manifestly can be done under the statute.

The bill in this case on this subject of sale for partition alleges, "and your complainant shows to the court that said land is not susceptible of division in kind, but will have to be sold in order to partition same between the parties as their interest may appear, as the houses and improvements on said land are on one end of the place and the wood land on the other end."

The most that any of the testimony in the case would justify the court in inferring would be that it was to the interest of one of these parties for the land to be sold, to-wit: the complainant. But the testimony of the defendant (appellant) himself shows that it is not only most important to his interest that it should be divided in kind, but that he is most desirous that it should be done. And the court cannot decree a sale, instead of a partition in kind, unless it will better promote the interest of all the parties. See section 3524, Code of 1906.

The court has no right to divest a landowner of his title and order a sale of his land unless it appear from the record that an equal division cannot be made, or that a sale will better promote the interest of all the parties than a partition in kind.

The common law gave to the landowner the right to have a partition in kind, and the right of selling the land and dividing the proceeds given by the statute is an innovation upon the common law, and as it takes away from the owner the right to keep his freehold in kind it must be strictly pursued. See Tindall v. Tindall, 3 So. 581; Cox v. Kyle, 75 Miss. 667; 3rd Pomeroy Equity Jurisprudence § 1390; Smith v. Stansel, 93 Miss. 69.

In the latter case our supreme court says: "Where it is possible to order a partition in kind, with due consideration of all parties, that mode of partition is preferable under the law. A sale for partition is only ordered where it would better promote the interest of all parties than a partition in kind, or where an equal division in kind cannot be made. We can hardly imagine a case where it would be necessary to sell one hundred acres of land in order to equitably partite the same, though it is possible such a case might exist."

Now in the case at bar, here is an eighty-acre strip of land one-half as wide as it is long, and while it is true that the most valuable part of the land is at one end of the tract and the less valuable at the other end, still under section 3531 of the Code of 1906, in which it is provided that an amount of money may be assessed to be paid by one of the cotenants to the other so as to equalize their respective shares, there would seem to be no possible reason why the prayer of this appellant should not be granted, and he be allowed to have his part of the land off one end and either charged with owelty to be paid by him, or credited with the same to be paid by the other party.

J. T. Lowe, for appellee.

We insist that this case is wholly different and unlike the cases of Cox v. Kyle, 75 Miss. 667, and Smith v. Stansel, 93 Miss., page 69, relied on and cited by appellant, in his brief. In those two cases, while an issue was joined, by the parties owning the land, on the question of whether or not said land was susceptible of partition in kind, yet, no proof was taken, nor any reference to commissioners was made to see, or ascertain whether said land could be partitioned in kind, but a decree was made by the court, for the sale of the land, on the bare allegation of complainant's bill, which was, in both instances, denied by answer.

In the case at bar, while the complainant alleges in his bill that said lands could not be divided in kind, and asks a sale for partition, yet, this was denied by answer and cross bill, and further, after complainant had answered the cross bill, reaffirming, by way of denial, the allegations in the original bill, that said lands were not susceptible of partition in kind, then an agreed decree was entered, naming three commissioners, who were directed to partition in kind, if possible to do so, "looking to the interests of both parties in interest," and if this could not be done, to so report to the court, then the said defendant, appellant here, seeking to further controvert the question as to whether said lands could be divided in kind or not, excepted to said commissioner's report, which was, that said lands could not be partitioned in kind. And then, on answer to said exceptions; by agreement and consent of all parties, on issue joined, as to whether said land should be sold, or should be divided in kind; a trial was had before the chancellor, and proof taken by consent, in open court.

We insist that the finding of the chancellor, in this case, should not be disturbed (see Partee v. Bedford, 51 Miss., page 84; Davis v. Richardson, 45 Miss., page 499) further, that a finding by a chancellor, on a controverted issue of facts stands in exactly the same attitude as a finding by a jury, or a court sitting as a jury. See Apple v. Gaong, 47 Miss., page 189; also Walker v. Walker, 67 Miss., page 529. Further sustaining us, see Wilson v. Beauchamp, 50 Miss., page 24; Randal v. Gates, 48 Miss., page 685; Harrington v. Allen, 48 Miss., page 492. Further see Allen v. Smith, 72 Miss., page 689; Jones v. Banks, 71 Miss., page 1023.

Where a jury is waived and a trial of facts is had before the court the same result follows, and this court will not disturb or overrule the findings, if the same is sustained by evidence, see Robertson v. Cloud, 47 Miss., page 208; Dickson v. Cook, 47 Miss., page 220; Railway Co. v. Bolding, 69 Miss., page 255.

We quote this language from Smith v. Stansel, supra, 98 Miss., page 60: "Where it is possible to order a partition in kind, with due consideration, for the interests of all parties, that mode of partition is preferable under the law, a sale for partition is only ordered where it better promotes the interests of all parties, than a partition in kind, or where an equal division in kind cannot be made." It is conclusive, from the proof, and the report of commissioners, in this case, that an equal division in kind cannot be made, and further, that every expediency has been resorted to in this case and used to the end, that a partition in kind be had. Further, the case at bar is unlike the case of Smith v. Stansel, supra, in this, that in that case, the two interests were equal, in this case one has a one-fourth interest and the...