Stevenson v. Stevenson, 90-CA-0236

• Decision Date: 17 April 1991
• Docket Number: No. 90-CA-0236,90-CA-0236
• Parties: Mike Arthur STEVENSON v. Joe Jackson STEVENSON and Lucy S. Jackson.
• Court: Mississippi Supreme Court

Page 550

579 So.2d 550

Mike Arthur STEVENSON v. Joe Jackson STEVENSON and Lucy S. Jackson.

No. 90-CA-0236.

Supreme Court of Mississippi.

April 17, 1991.

Cleve McDowell, Drew, for appellant.

John W. Whitten, Jr., Breland & Hilburn, Sumner, for appellees.

Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

In 1952, Mrs. Arky Stevenson deeded to two of her children, Verda Stevenson and O.V. Stevenson, forty acres of real property located in the Second Judicial District of Tallahatchie County, Mississippi described as "The Southwest Quarter of the Southeast Quarter in Section 32, Township 24 North, Range 2 West." When O.V. Stevenson died, he left his interest in the property, share and share alike, to his wife, Rachel McNeely Stevenson, and four sons, Mike Arthur Stevenson, Charles Vernon Stevenson, Joe Jackson Stevenson, and Dan David Stevenson. Verda Stevenson, by will filed with the court on April 17, 1987, left a life estate in her twenty-acre parcel to her nephew, Joe Jackson Stevenson.

On September 16, 1987, Joe filed a Complaint asking for partition of the forty acres so that he could enjoy his life estate in the twenty acres. Rachel Stevenson, Mike Stevenson, Charles Stevenson, and Dan Stevenson were issued summonses as interested parties. ¹ When those parties failed to respond, the court entered a Decree by Default.

On January 5, 1988, the court appointed three Commissioners, H.O. Pullen, Floyd Cole and L.W. Kimzey, and an Engineer, Raymond Barker, to divide the land. The Commissioners and the Engineer went to the property on January 15, 1988 in compliance with the directive from the court. Mike Stevenson, who lives in the residence on the land, appeared and ordered them off the premises. The Commissioners left without completing their work. Joe filed a Motion with the court asking that Mike be held in civil contempt.

Mike responded to the Motion stating that the Commissioners did not enter into the oath required of them by statute before beginning their duties. He also entered an objection to two of the Commissioners, Floyd Cole and H.O. Pullen, because of their longstanding friendship with Joe Stevenson. The court dismissed the Motion When the Commissioners and Engineer completed their work, they reported that the residence on the property was of substantially higher value than was the rest of the property. They recommended that moiety in excess of $4,000.00 should be paid by the party to whom the residence was allotted. Since none of the parties would agree to pay that amount, the Commissioners recommended that the land be sold and the proceeds divided according to interest.

for Civil Contempt and ordered that two new Commissioners be appointed. Smith Murphey and Leonard Patterson were named as replacements.

The court ordered the property to be sold since it was not capable of division and appointed Nick Denley as Special Commissioner to make the sale. The Order contained a description of the property as that located at the "Southwest Quarter of Southeast Quarter of Section 24, Township 24 North, Range 2 West, Tallahatchie County, Mississippi."

Denley gave published notice of the sale which was to be held on May 2, 1989. The notice described the property as "The Southwest Quarter of Southeast Quarter of Section 24, Township 24 North, Range 2 West." Notice of the sale was given to Mike's attorney, Tom Ross, and to Joe Stevenson, Lucy Jackson, Dan Stevenson, and Charles Vernon Stevenson.

The sale was held and the property sold for $20,000.00. The court ordered that expenses be paid from the proceeds and that the remaining amount be distributed as follows: Mike Stevenson, 30%; Charles Vernon Stevenson, 10%; and Joe Stevenson, 50%, which amount was to be deposited in an account from which the interest income would be paid to Joe during his lifetime and the remainder paid to the heirs at law of Verda Stevenson.

On May 16, 1989, Joe Stevenson's attorney, John Whitten, filed a Motion to Correct Scrivener's Mistake. He acknowledged that the description of the property contained an error in several of the documents filed in regard to the partition. The correct description is the "Southwest Quarter of the Southeast Quarter of Section 32, Township 24 North, Range 2 West." Some of the documents, including the notice of sale published in the newspaper, described the property as being in Section 24. The attorney asked that the mistake be corrected and the distribution of the proceeds of the sale upheld since no party in interest had suffered any loss and in fact, attorneys for both sides were present at the sale. The court ordered that the mistake be corrected and a new deed be executed. The court further ordered that the proceeds be distributed.

On September 26, 1989, Lucy Jackson, who purchased the property at the sale, filed a Motion for Writ of Assistance for Possession asking that the court order Mike to be removed from the property since he refused to vacate the land or accept his share of the proceeds. After holding a hearing during which Mike was present without legal representation, the court entered a Writ of Assistance ordering Mike to vacate the property within forty-five days.

Mike filed a Motion asking that the court stay execution of the Writ of Assistance. Among his reasons were his lack of legal representation at the hearing on the Writ, his lack of representation at various other critical stages of the proceedings, his objection to the sale because the land which was advertised was not the land which had been purchased, and his belief that he would suffer irreparable injury. The court overruled the Motion and entered a final judgment closing the proceedings on February 16, 1990. Mike appeals from that judgment.

THE LAW

Mike assigns one issue as error in this appeal. He contends that the partition sale should have been set aside on the ground that the notice of the sale contained an inaccurate and misleading description of the subject property.

When reviewing the findings of fact made by a chancellor, we will not disturb those findings if they are supported by credible evidence and are not manifestly wrong or unless the chancellor has applied an erroneous legal standard. Southern v. Glenn, 568 So.2d 281, 287 (Miss.1990); Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989); Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983). When the determination is one of law rather than fact, "the familiar manifest error/substantial evidence rule does not prevent this Court from conducting a de novo review of the chancellor's finding." Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1028 (Miss.1990).

Van Norman v. Barney, 199 Miss. 581, 24 So.2d 866 (1946), addressed the question which has been raised in the present appeal. The appellant entered the highest bid at a judicial sale but the chancellor refused to approve the sale since the land was incorrectly described in the petition for sale and in the notice of sale. After correcting the description, a second sale was conducted at which the highest bidder was someone other than the appellant. The second sale was not approved because too much time had elapsed between the advertisement and the sale. Finally, a third sale was conducted which was approved by the court. The appellant was not the highest bidder at this sale.

The appellant entered an appeal contending that the first sale should have been confirmed to him. This Court disagreed with that contention. Since the description failed to give the township and range in which the land was located, the sale was void. The Court said that not only might the incorrect description "have deterred others from bidding", but "the Court should not render a decree knowing it to be void and illegal." Van Norman, 199 Miss. at 583, 24 So.2d at 867.

In Griffin, et al. v. Land, et al., 214 Miss. 557, 59 So.2d 290 (1952), an incorrect description was given in the notice of a foreclosure sale. The Court said that although several cases had held that a description was not void for uncertainty where the section, township and range were properly given, the description was void where the notice failed to show the township and range.

This Court explained the rule in those cases where the notice of sale contains an incorrect description.

In the case of Yellowly v. Beardsley, [76 Miss. 613, 24 So. 973, 71 Am.St.Rep. 536], and again in the later case of Hancock v. Pyle, [191 Miss. 546, 3 So. (2d) 851], this Court quoted with approval the following principle found in Freeman's note on Tyler v. Herring, 67 Miss. 169, 6 So. 840, 19 Am.St.Rep. 288: (footnote omitted) " 'Manifestly, the objects to be accomplished by a notice of sale are to advise the public of what is to be sold, and the time when,...