PONTOTOC CO. MS
COURT RECORDS
 

"Reports of cases argued and determined in the Supreme Court of Mississippi" Vol.II, by J.S. Morris; ("Mississippi Reports") Vol.44, pgs.375 to 384 (California State Law Library, Sacramento, 1/2004)
      CHARLES WILLIAMS v. WILLIAM DUNCAN et al.; Supreme Court of Mississippi; 44 Miss. 375; October, 1870, Decided.
      Appeal from the chancery court of Pontotoc county. Kilpatrick, J.
      The facts sufficiently appear in the opinion of the court.
      Appellant assigns the following causes of error:
      1st. The court below erred in overruling the demurrer of Wm. Parks, one of the defendants, and in disregarding the same and considering it overruled as of course, because it was not set down at the term after the same was filed, and taking the bill of complainants as confessed as to said defendants.
      2d. The court below erred in overruling the motion of defendant, Charles Williams, to set aside pro confesso taken against him at rules, and in disregarding the affidavit of said Williams in support of said motion, and in disregarding the demurrer filed by his counsel in court below.
      3d. The court below erred in confirming the report of the commissioner as to said defendant, Charles Williams.
      4th. The court below erred in rendering a decree against defendants over the answer of R. B. Newsom, guardian ad litem of minor defendant.
      5th. The court below erred in the final decree, and erred in rendering judgment against Charles Williams, one of the defendants, for mesne profits and costs of suit.
      6th. The court below erred in rescinding the contract of sale on final decree and vacating and setting aside guardian's sale.
      COUNSEL: John W. Thompson, for appellant. The bill was framed with a double aspect. 1st. For the sale of the lands for the payment of the purchase money; or, if this cannot be done, then for a rescission of the contract. Appellant had no connection with the sale of the lands except as a purchaser from A. J. Jones, who had bought a part (200 acres, from B. A. Tardy, the purchaser of all the lands named in the bill, at guardian's sale, made by Andrew J. Duncan, former guardian of complainants.) This sale by Duncan, as to the 200 acres, was totally void for uncertainty of description, title thereto remaining in the complainants, as heirs and distributees of James W. Duncan, deceased. This sale was also void for want of timely report and confirmation. The case was not regularly continued at the December term, 1860, the confirmation having been at March term, 1861. The appellant was not a necessary party.
      That which is in the nature of a mortgage alone gave jurisdiction in this case, but it does not follow, necessarily, that because a vendor has a lien for the purchase money, to enforce which he can go into equity, he may also insist on that court retaining jurisdiction merely to collect mesne profits, where he has a clear legal remedy. The right of plaintiff to recover mesne profits depends not upon his possession, but upon his title. Complainants ought to have brought ejectment against Williams, and thus he would have been enabled to claim compensation for valuable improvements, and been protected in his lien therefor on the land.
      Defendant, Williams, shows by the bill of exceptions, that he was, by the representations of the guardian, Mitchell, (that he would only loose the 200 acres of the land and would not be liable for mesne profits), and being also so advised by his legal counsel, induced to make no defense to said suit, and pro confesso was taken against him; that afterwards, when he discovered that complainants were seeking to render him liable for a large amount of mesne profits, suits, etc., he then moved the court below to set aside the decree and permit him to make defense, which was refused. At this time the cause was not at issue for the want of service of process on the heirs of Tardy, who were necessary parties. This court will note the fact that the truth of Williams' affidavit on which his motion to set aside was based, is not controverted by counter affidavit of Mitchell, or otherwise, and it shows conclusively that it was the assurances alone of Mitchell, as therein set forth, that induced him, Williams, to neglect to make his defense at a proper time.
      So much of the bill as set out the metes and bounds of the 200 acres is mere fiction, and unsupported by any testimony whatever, and is, therefore, to be considered as a bare, naked assumption. The petition of A. J. Duncan, guardian, etc., simply states that about 200 acres of the land, section 1, township 8, range 2 east, belong to his wards, and prays a sale, etc.
      Geo. L. Potter, for appellee. The first error is the refusal to set aside the pro confesso on motion, and to allow defendant to answer; but the motion states no ground for the application.
      This motion was based on an affidavit stating that he believes he has a meritorious and legal defense to the suit; that complainants, just before the term of the court, took a pro confesso at rules, against Williams and others; he was informed, as he understood complainant, by him, that defendant would not be held liable for anything more than the land; that he would lose that, but have recourse against his vendor or his estate, and would lose nothing but the land; affiants' legal counsel also advised that he could not hold the land, and, therefore, relying on what he so understood, determined to let the land go. A. J. Jones, who, as the bill states, acquired from B. A. Tardy, who bought from the administrator; which last sale was void. Upon his own purchase, affiant took, and has since held possession, and has made considerable improvements of a substantial nature.
      It does not appear that he presented any answer with his application, as he should have done.
      It appears that appellant was notified, by the bill itself, that a decree was sought for rents and profits, in case a sale could not be enforced to pay the notes. The affidavit is defective in not designating which of complainants made the statement. The guardian is probably the person referred to, but the statement seems but the expression of an opinion; but there is no pretense of any assurance that complainants would waive their right to rents in case said sale was void. The report of sale was not made until December term, nor was it confirmed until the ensuing March term; and thus, it is contended the bill showed the sale was void under the sale affirmed in the Learned case. But he says he has a legal and meritorious defense; that the guardian's sale was void. If so, complainants were entitled to the lands. He admits he has occupied the lands of infants, and that they have the very remedy in equity, given to them in this case.
      2d. The second error alleged is that appellant is decreed to pay the rents. This is based on the supposed want of jurisdiction in such case, and it has already been answered. The infancy of complainant settles the matter.
      3d. Lastly, it is objected that the court received and allowed the report of the commissioner to whom it was referred to ascertain amount due for rent. There was a formal order of reference, and regular report made, upon notice to Williams, which report was duly confirmed. No objections were taken before the commissioner, nor any exception filed to the report.
      The pro confesso against Williams was not dependent, at all, upon the prior service of process against the other defendants.
      The bill of exceptions shows that certain of the probate records were introduced to show the guardian's sale was void. As Williams, with the pro confesso against him, could not offer such proof, it is presumed that it was offered by the defendants, who had answered.
      Williams being in possession, and liable, was a proper party to the suit; he was sub-vendee of the lands, and directly interested in the suit.
      (Opinion:) In 1866, William Duncan and Josephine Duncan, by their guardian, C. G. Mitchell, filed in the chancery court of Pontotoc county, their bill of complaint against Charles Williams and others, setting forth that complainants are minors and sole heirs of James M. Duncan, deceased; that, as such heirs, they inherited several tracts of land particularly mentioned in the bill, which lands were sold by their guardian, Andrew J. Duncan, since deceased, to one B. A. Tardy, in November, 1860, himself also, since deceased, for $3,486, secured by three several bills single executed by B. A. Tardy, J. C. Allen, and A. J. Jones, payable in twelve, twenty-four and thirty-six months, from November 3d, 1860, for $1,162, each, with interest at eight per cent.; that these lands were sold pursuant to a decree of the probate court of Pontotoc county, entered and made at the September term, 1860; that the report of sale was made to the December term, 1860, and confirmed at the March term, 1861; that B. A. Tardy, upon his purchase, went immediately into possession of these lands and received the rents and profits thereof; that he subsequently sold and conveyed to A. J. Jones, who afterwards sold and conveyed to defendant, Charles Williams, who is the present occupant; that both Tardy and Jones have since deceased; that the whole of the purchase money remains unpaid; that the title conveyed by the guardian is believed to be perfect, except for purchase money; that the sale was made in good faith, and that it is for the interest of complainants that the sale should be completed by the payment of the purchase money.
      The heirs and representatives of Tardy and Jones are named, as defendants and complainants, offer to do and perform any act on their part, with the consent of the court, to perfect the contract and title.
      The bill prays for a sale of the lands to pay the purchase money, or that the contract be rescinded, and an account taken of the rents, issues and profits; that the heirs and representatives of Tardy and Jones, deceased, be made parties, with a prayer for general relief, etc.
      The parties appear to have been brought regularly before the court. Parks, administrator of Tardy, deceased, at the October term, 1864, of the court below, filed a demurrer to the bill; at the April term, 1867, this demurrer came on to be heard and was continued by consent; and at the October term, 1867, a judgment pro confesso was taken as to all the defendants, including defendant Parks, in disregard of his demurrer; at the April term, 1868, the defendant, Williams, entered a motion to set aside this judgment as to himself and for leave to appear and defend, which motion was at the same term overruled.
      Upon the hearing of this motion, defendant Williams read an affidavit by himself, stating that "he has a meritorious and legal defense" in this case "as he is informed and believes," and that "affiant was informed, as he understood complainant, by him, that he, defendant, would not be held liable for anything more than the land; that defendant would lose that, but would have recourse over and against A. J. Jones, and that he would lose nothing but the land. Affiant also consulted John W. Thompson as an attorney of this court as to whether he could hold the land or not, and was informed that in the opinion of his attorney he could not keep the land as against the heirs of James W. Duncan, deceased;" that "therefore, relying on what he understood complainant to state, and the legal opinion of J. W. Thompson, as above stated, affiant determined to let the land go;" that "affiant bought the land of A. J. Jones, in good faith, and paid $3,200 in cash for it, and took a deed, and has owned it ever since, and made considerable improvements of a substantial nature."
      At the October term, 1868, William P. Spencer was appointed by the court, a commissioner to take and state an account of the rents, issues and profits of the land in controversy. The report of the commissioner was made to the court, and confirmed at the same term, October, 1868. The defendants did not appear upon the hearing before the commissioner, and the proof of service of notice of time and place of hearing, is wholly unsatisfactory and insufficient. The commissioner reported upwards of two thousand dollars for rents, issues and profits due from defendant Williams.
      The proceedings in the probate court upon the sale of these lands are given entire, from which it is evident the contract cannot be executed specifically in its entirety, because of the uncertainty of the description of the two hundred acres, which cannot be identified, nor in any way ascertained from the records, being described only as "200 acres of section 1, township 8, range 2, east."
      The final decree in this case was made at the October term, 1869, by which the contract of sale is rescinded, the defendant Williams is decreed to be indebted to the complainants for use and occupation in the sum of two thousand and twelve dollars, and the defendants jointly, are decreed to pay the costs. No notice appears of filing the report of the commissioners, nor of application for its confirmation, nor were exceptions filed thereto by defendants or either of them. From this decree the defendant, Williams, appeals to this court, and assigns the following as causes of error:
      1st. The refusal to set aside the judgment pro confesso.
      2d. In rendering a personal decree against him for mesne profits.
      3d. The reception and allowance of the report of the commissioners.
      The jurisdiction in this case is complete for all purposes. If there were no other reason, the infancy of the complainants brings the case within the jurisdiction of a court of equity, for all the purposes of this bill, including the claim for use and occupation.
      It is altogether probable, from the records of the probate court presented with this bill, that the only proper disposition of this case is to rescind the sale; yet, upon the affidavit of defendant, Williams, of a meritorious defense, which he was induced to forego upon the representations of complainant, on which he relied, that no claim would be made, further than a recovery of the lands, we are disposed to afford this defendant an opportunity to be heard.
      Several errors appear in the record and proceedings; but defendant failed to take the steps necessary to avail himself of them here. The proof of service of subpoena to answer the bill, and notice of taking the account of the rents, were wholly insufficient, but they are not now available, and are but technicalities at best. The decree pro confesso against Parks, while his demurrer was pending undetermined, appears to have been improper, but he is not a party to this appeal. The damages awarded in the way of rents for use and occupation, seem to us to be excessive. It will do no harm to review this branch of the case, and it may be that the defendant has meritorious claims for valuable improvements; but whether the case is a proper one for their allowance, we express no opinion.
      It seems to us, also, that others than the defendant, Williams, ought to pay the costs, which, by the great number of alias and pluries subpoenas to several counties, to bring in numerous heirs and representatives of deceased parties, must be very large. This point may well be reviewed, also, by the court below. The defendant appears to be an innocent, though not technically, perhaps, a bona fide purchaser of these lands, and entitled to favorable consideration, dependent upon the developments of a hearing.
      Judging by the record before us, the defendant has acted, at least, honestly, having confidingly paid the purchase price of these lands, and has, therefore, a claim to such favor as the facts and the rules of equity may warrant, as well against his co-defendants as against complainants.
      The power of the court to set aside judgments pro confesso, is unquestionable, Daniel's Ch. Pr., 509, 1015, 1045, and is frequently exercised. So, also, the refusal to open such a decree is the subject of review by the appellate court. Relief is a matter of sound discretion to be afforded in the furtherance of justice, when justified by the special circumstances of the particular case. Conceiving this to be such a case, the final decree, and judgment pro confesso, against defendant, Williams, are reversed and set aside, with leave to him to appear and plead within forty days.
 

"Reports of cases argued and determined in the Supreme Court of Mississippi" Vol.II, by J.S. Morris; ("Mississippi Reports") Vol.44, pgs.375 to 384 (California State Law Library, Sacramento, 1/2004)
      THOS. B. WILSON et al. v. S. L. A. DUNCAN, by Next Friend; Supreme Court of Mississippi; 44 Miss. 642; April, 1871, Decided.
      Appeal from the chancery court of Pontotoc county. Pollard, J.
      The appellants filed the following assignment of errors:
      1st. The chancery court erred in overruling the exception filed by appellant, Wilson, to the report of E. C. Bell, commissioner.
      2d. The chancery court erred in overruling the second exception filed by appellant, E. C. Jones, as guardian.
      COUNSEL: Sale & Dowd, for appellants. No court has jurisdiction to sell infants' lands, unless conferred upon it by the legislature.
      In Mississippi, at the time of filing the original bill, and at the date of the interlocutory decree of sale in this case, such power is thus given by the constitution and statutes, only to the probate court.
      The power conferred upon the chancery court, Rev. Code, 551, art. 73, to decree a sale of the lands of tenants in common, etc., whenever it "will better promote the interest of all parties," plainly contemplates adult tenants in common only. The legislature cannot be held to have intended to so violate the provisions of the constitution, as to empower any other than the probate court to intermeddle with the legal title to the lands of minors. Where they are concerned, appropriate provision for such an emergency is fully made in art. 153, of the Code, 564 supra.
      Nor does such power inhere originally in courts of equity, as an incident to their jurisdiction of questions of "partition," even among adults. They decree "owelty" to be paid as compensation for inequality of values; but not a sale of the whole. The shares being in that way made equal, conveyances are directed. Yet, even in this proceeding, the infancy of one of the parties operates a hindrance.
      The jurisdiction of the probate court over the matters thus confided to it by the constitution, is exclusive of all other courts -- over matters of administration.
      All our courts, including the chancery, derive their jurisdiction from the constitution; and the expressing of jurisdiction over certain matters for one, excludes it from all others. If the probate court can give the desired relief in estate and orphan's matters, equity cannot be resorted to. But if it cannot, then equity may administer precisely as in case of inadequacy of relief in any other court.
      The relief here sought, by sale of the lands, may be directly given by the probate court, and expressly upon each of the grounds stated in the bill; and the same power is nowhere conferred upon the chancery court, where infants are concerned.
      If the probate court could have administered the relief desired (and who will deny that it could), it is because that part of the subject matter of the bill is orphans' business or minors' business; and being such, the jurisdiction of that court is exclusive, as we have seen, if there be any subject over which its jurisdiction is exclusive.
      Exception to the want of jurisdiction over the subject matter of a suit, may be taken at any stage and in any manner; and if not taken before judgment, the judgment itself is void. The defect cannot be waived, either impliedly or expressly.
      In this case, the usurpation of jurisdiction occurs in an interlocutory decree. Such a decree, before it is made final, may be set aside by the chancellor at any term of the court, and for any good cause. No cause can be better than that of want of jurisdiction over the subject matter of the interlocutory decree.
      Even the purchaser at the sale may raise the objection, if his title be injuriously affected. He is already a quasi party by virtue of his purchase, and is subject to the jurisdiction of the court. He may move by petition.
      We need not adduce argument or illustration to show that that question is referable alone to the time when the bill was filed. It is still further beyond dispute, if the requisite jurisdiction was wanting, when the decree complained of was reduced.
      C. D. & J. W. Fontaine, for appellee. There was no error in overruling the exception of Wilson and Jones to the report of the commissioner.
      The objection to the former, of the court to order a sale of the land, the principal relief prayed for in the bill, comes too late after decree; the same being res adjudicata, and can only be impeached by bill of review or supplemental bill in the nature of a bill of review or appeal, Story Eq. Pl., 444, 445; and not by motion to disallow supplemental bill, or even demurrer thereto, where the same is filed for directions to appropriate the fund created by the decree. Nor can exceptions to the report of the sale extend to anything more than a departure from the directions of the decree, or error in the report.
      No court has gone further than to allow objections to the jurisdiction, except in the usual modes of demurrer, plea or answer, at the hearing of the cause. The following authorities extend the rule beyond the hearing: ... (MAD: Citations omitted here)
      Besides those specific subjects which are concurrent with those expressly conferred to the probate court, mentioned by Judge Smith, is this the very question of partition, which was always, at and before the adoption of the constitution, a matter of concurrent jurisdiction of the chancery court. Because that court alone can decree owelty of partition; 2d. To make allowance for improvements, if there be one party; 3d. And to require an account for rents, issues and profits as this bill prays; 4th. To make conveyances; 5th. And this especially in the case of infants; 6th. And because not restrained to mere allotment of the land, as courts of law (probate courts) are; 7th. Various other matters and powers peculiar to a court of equity.
      And taking jurisdiction for any one of the above grounds (for an account) will give all incidental relief. And will entertain jurisdiction where the remedy is more full and complete than at law.
      There it was certainly within the grant of full jurisdiction in all matters of equity, conferred by the constitution, and again expressly, by a declaratory act of the legislature.
      The same jurisdiction is granted in case of infants, but restricted to the particular instances of a sale of land of the wards, when an equal division cannot be made.
      The statute relied on by counsel for appellant, does not authorize the probate court to sell the undivided land; but only the ward's part or share by the guardian when for his interest. Rev. Code, 463, art. 151. Article 117 only authorizes a mere naked allotment by metes and bounds as under a writ of partition at common law.
      In Rev. Code, 454, art. 117, where the probate court is authorized to divide, it cannot allow anything for owelty of partition, improvements, or require an account for rents, issues and profits, nor can it marshal assets where personal estate is insufficient.
      But it is said by counsel for appellants, that this statute does not apply to infants, and reads an authority to show that no court possessed the inherent power to sell the lands of infants.
      The authorities relied on by counsel for appellants to show that all the subjects of jurisdiction confided by the constitution to the probate court, were exclusive of the chancery court, are Blanton v. King, 2 How., 856; Carmichael v. Browder, 3 ib., 254. Both of which are expressly overruled, so far as the construction which is here put upon them and contended for.
      Hamlin v. Terry, 7 How., 143, simply decides that an issue of devisavit vel non is not within the jurisdiction of chancery, but of the probate court. Stubblefield v. McRaven et al., 5 S. & M., 130, 142, simply shows, that mere matters of administration do not belong to chancery, but to probate courts, and equity will even then interfere, if there is fraud.
      (Opinion) SIMRALL, J.: Sarah L. A. Duncan, a minor, by her guardian, C. G. Mitchell, filed a bill in chancery, against E. C. Jones and his wards, Thos. H. and Nancy I. Duncan, for an account of the rents and profits of certain lands, which were in his exclusive possession, as such guardian, and which lands descended from their father to the said three minors, in equal parts. The bill averred that the personal estate of these children had been wasted, and that the only means of support of his ward, Sarah A. Duncan, was her third interest in these lands; that it was to the interest of all the children, that the lands should be sold; that a partition could not be made, and a necessity for this reason existed for the sale.
      Jones, the guardian, admitted the material allegations of the bill, and acquiesced in the propriety of the sale. A decree was made appointing Enoch C. Bell, a commissioner, to sell the land for cash, make a deed to the purchaser, pay the costs to be taxed, and report at the next term of the court, when the money would be disposed of by the further order of the court.
      In July 1870, the commissioner filed his report, showing a sale of the land to several purchasers, for the aggregate price of $6,237 cash, and that having paid sundry items for costs, expenses, and counsel fees to complainants' solicitors, there was left in hand $582 41 subject to the order of the court. At the August term following, Jones, guardian, exhibited exceptions to the account. 1st. To the counsel fee of $311 87; and 2d. That the chancery court had no jurisdiction to sell the lands of infants, and the sale was therefore null and void. At the same term of the court, Thos. B. Wilson, who was a purchaser of part of the lands, on his petition, was made a party defendant, and permitted to file exceptions to the report. Whereupon he objected to all the proceedings under the decree, as null and void, and asked that the decree and sale be set aside and that the deed to himself be surrendered and canceled, and the money paid by him to the commissioner be refunded. The first exception taken by Jones, was sustained; his second exception, and also the one made by Wilson, was overruled, and from this decision, Jones, and Wilson took separate appeals.
      The error assigned here, is the overruling of those exceptions; and that involves the question of the jurisdiction of the chancery court to order a sale of the lands of infants, held in joint tenancy, or as tenants in common, on the state of facts made in the pleadings.
      In Rogers v. Dill, 6 Hill 415, it was said that there was no inherent original jurisdiction in a court of equity, to sell the land of an infant. Lord Hardwicke declared in Taylor v. Phillips, 2 Ves. Jr. 23, there was no instance of the court binding the inheritance of an infant, by any discretionary act of the court; as to personal things, it has been done, but never as to the inheritance. These authorities go to the point -- that the court cannot direct a sale on the mere allegation that it would promote the interests of the minor. The argument is addressed to us on behalf of the appellants, that the jurisdiction to sell the real estate of minors, pertains exclusively to the probate court. Section 18 of the Revised Code, under the title "Of the duties and powers of the guardian," contain these provisions. Code, 463, art. 150. The probate court, when necessary for maintenance and education, may allow a sale of part or the whole of the ward's land. Article 151, may direct sale of the land in whole or part, "when the guardian may think it would be for the interest of the ward." Article 153, the guardian may sell the ward's share, when there has been a descent or devise jointly, "one or more being minors, and an equal division cannot be made," or the court may order the whole to be sold, and a distribution of the money among those entitled. It seems to be clear that an application to sell in any of these circumstances, must be made by the guardian, and they do not embrace the case of adults; except there may be adult heirs and devisees, when the guardian proceeds under art. 153.
      But these provisions of the statute, are not all that apply to the sale of the lands of joint tenants, and tenants in common. In proceedings for partition, if the commissioners report that none of the parties will take the share containing the buildings, and pay the excess of its valuation over the other parcels; or, "if no division can be made," the judge may order the commissioners to sell the entire premises on such terms as he may prescribe.
      The chancery court has jurisdiction to order the sale of "any real estate held in joint tenancy, or tenancy in common, when a sale will better promote the interests of all parties than a partition." If the lands are not susceptible of a division, a clear case is made of the necessity and benefit of a sale. Of sufficiency of the reason for the sale, the court is to judge. The power to make the sale of real estate jointly held, is conferred, and the title will pass to the purchaser, although the court may have decided erroneously as to the matter of benefit to the parties. Like all other judgments, where jurisdiction obtains over the subject matter and the parties, it is valid until reversed or vacated. But it is objected that cognizance over the subject, must be limited to cases where all the tenants of the estate, are adults, because the constitution of 1832 and amendments thereto conferred exclusive jurisdiction on the probate court, over matters testamentary, administration and "minor's business." It would be profitless, now to trace the boundaries of the chancery and probate courts, as defined in the cases of Blanton v. King [2 Howard 856], and Carmichael v. Browder [3 Howard 252], and the many others subsequent thereto. Dismissing this subject in Servis v. Beatty, 32 Miss. 52, the court observed, "recourse must be had to the acts of the legislature, and to other systems in which the principles of equity jurisprudence are applied, and the subjects of its jurisdiction defined," in order to learn the extent of its cognizance.
      The constitution of 1832, granted to the chancery court "full jurisdiction in all matters of equity." The act of 1833, Hutch. Code, 679, conferred on the probate court power to order the sale of lands of joint tenants and tenants in common, whenever an equal division can not be made. This is doubtless the original of art. 153, in the revision of 1857. So that in rather broader terms, the jurisdiction granted by the act of 1833 to the probate court, is, by the Code of 1857, transferred to the chancery court. It it manifest that the act of 1833 was not confined to the case where one or more of the tenants were infants; the fact on which the jurisdiction by this act attached was, that an "equal division could not be made." In the code, the right of the chancery court to sell, arises when it shall appear "to be to the interest of all concerned." We are reminded by the court in Servis v. Beatty (supra), that for the sources and extent of equity jurisdiction, we must look to the statute and the system of equity law. Here is a statute expressly empowering the chancery court to order sale of realty held by coparceners, tenants in common, and joint tenants. At common law there seems to have been no authority in any of its courts to sell the land in the condition of facts mentioned in our statutes. At law, there was the ancient writ of partition sent down to the sheriff, directing him, with his jury, to make partition, but for any inequality in the several parcels, there was no power to award compensation. On account of the inadequacy of this remedy to do complete justice, certainly as early as the reign of Queen Elizabeth, and perhaps earlier, the high court of chancery in England entertained bills for partition. But in the origin of the jurisdiction there were special reasons, as where one party had expended large sums for improvements. Although a lien does not attach on the lands, yet a court of equity would direct an account, and compel compensation. So when one tenant in common has been in the exclusive perception of the rents and profits, an account will be decreed as well as partition. So also, one tenant may be compelled to pay owelty by way of equalizing the several shares of the premises.
      The remedy in chancery was so much more convenient and full, that it is (where not regulated by statute) resorted to almost exclusively, and it is now the settled doctrine that it is not necessary to state in the bill any peculiar ground of equitable interference. At the time of the adoption of the constitution of 1832, included in the grant of "full jurisdiction in matters of equity," was this cognizance over the partition of lands, and if the statute had not introduced a simpler, cheaper and more expeditious remedy, it would doubtless have been employed. To this original jurisdiction of a chancery court, the Code of 1857 merely added authority when the necessity existed to sell the lands and distribute the money. The probate court is constituted with exclusive jurisdiction over minors' business. The court of chancery with "full jurisdiction in matters of equity," it would seem to us, looking to the general scope of powers and duties of these tribunals, that it would be more natural, more in harmony with its jurisdiction and remedial agencies, that the power to sell the land of coparceners and tenants in common should be referred to the chancery than to the probate court.
      We cannot concur with the counsel for the appellants, that the infancy of one or more of the tenants in common, etc., interrupted the jurisdiction. It might interfere with the present conveyance of the minor to the other tenant, but did not hinder an assignment of a separate possession. Such decrees, like all chancery decrees affecting infants, gave them a day after attaining majority to show cause. But in England this has been altered by act of parliament. The cases in New York, to which we were referred, arise under peculiar statutes. Postley v. Kain, 4 Sandf. Ch. 509. The words were "any one or more being of full age." The vice-chancellor remarked that these words were introduced into the revised statutes in conformity to the decision of the supreme court in Doe ex dem. Gillespie v. Woolsey, 11 Johns. 455. This case occurred under the act of 1785. The objection to the partition was that one of the applicants for partition was an infant. The 15th section of the act under which the proceedings were had -- "it may be done at the instance of one or more of the parties interested in the lands to be divided." It was held, therefore, that an infant was as clearly embraced in the act as an adult. The language of article 73, p. 551, of the code, is almost identical with the New York statute of 1785, to-wit: "The chancery court may, upon bill filed by any of the parties in interest, order a sale," etc. The right of access to the chancery court is without limitation or restriction, embracing infants as well as adults; and we have placed the same construction upon it as was given a like statute by the supreme court of New York. We think the counsel for the appellant is mistaken as to the character of the decree for the sale and the account. It is final and not interlocutory, and was not, therefore, under the control of the chancellor after the expiration of the term at which it was passed. In Robertson v. Johnson, 40 Miss. 500, a decree foreclosing the vendor's lien, and directing the sale, was held to be final, and partakes of this character, although there has been no confirmation of the sale. The acts of the commissioner in making the sale, and report, are ministerial and executory. The confirmation is the adoption and ratification of his acts as properly done.
      Concurring with the chancellor that there was jurisdiction to sell the lands in controversy, there is no error in the ruling complained of. This conclusion makes it unnecessary to consider the other questions make in the argument.
      Decree affirmed.
 

END

Return to the Pontotoc Co. MS Research File

Return to Index to Duncan Research Files in Mississippi

Return to The Genealogy Bug's Home Page