56 Miss. 342 | Miss. | 1879
delivered the opinion of the court.
A bill in chancery was exhibited by Mrs. Lizzie Jones, for the sale of lot 85, in the town of Grenada, because partition of the same could not be made between herself and the defendant, William A. Belew.
She alleges that Belew became the owner of ten and two-thirds feet fronting on the public square, running back and east one hundred and four feet, by mesne conveyances from Martha M. Neil, who had a dower interest in that much of the lot.
In his answer, Belew admits that Mrs. Neil had a dower estate in part of the lot, corresponding in metes and bounds to the description of it given in the bill, and that this estate has vested in him by purchase and deed. With his answer the defendant exhibited a deed from Mrs. Neil, conveying her estate for life, as dowress, to Buffington, and a deed from
The answer of Belew, in effect, admits the allegations of the bill as to the interests of the parties in the property. Really no issue of fact is raised. In that condition of the pleadings, on a submission of the case on the merits, the chancellor decreed that the property should be sold; and a reference was made to the master to ascertain and report the value of the estate for the life of Mrs. Neil, which was owned by Belew, reserving the partition of the money until that report should be made.
The theory of the law is, that if, “ on account of the nature and condition of the lands, and the number of shares into which they must be divided, it is impossible to make partition, etc., and the commissioners shall so report, a decree of sale maybe made, and the proceeds divided among those entitled.” Code, sect. 1829. The “lands” to which this section has application are those owned by “joint tenants, tenants in common, or coparcener's.” Code, sect. 1809. If “these lands” are not susceptible of partition in the manner provided in the subsequent sections, then they may be sold, under sect. 1829.
Speaking of a statute, — the original, in substance, of the one now in force, —in Vick v. Vicksburg, 1 How. 444, 445, it was said: “ The proceedings are special and statutory, and must be governed by the statute authorizing them.”
The statute confines the remedy, either for “ partition” or “sale,” to those who are joint tenants, tenants in common, or coparceners of the land. Because lands thus held cannot advantageously be divided among the tenants, .so that each may enjoy his part in severalty, the statute allows a sale, and division of the money. Therefore it was held in Pankey v. Howard et al., 47 Miss. 83, tha.t there must be a joint estate in the lands proposed to be divided or sold; if otherwise, the statute does not apply.
It is manifest that this was not a case for the sale of the land.
But the defendant did not take the opinion of the court on the bill, by a demurrer; nor in his answer, as he might have done, did he specifically object to a decree of sale. The answer, as already remarked, was an admission of the allegations of the bill. The only question of any seriousness is, whether, in such a state of pleadings, he can object, in this court, that the complainant has not stated a case which entitles her to relief. That is the precise extent of the proposition; for the answer does not help out the bill, nor make a better or broader case for the complainant than she has made for herself.
The verdict of the jury sometimes cures a defective case stated in the declaration; very large intendments are made to uphold it. But in chancery suits the decree is right or wrong, as the parties have made their case in the pleadings and proofs.
Decree reversed and bill dismissed.