61 So. 421 | Miss. | 1913
delivered the opinion of the court.
A bill for partition of certain land was filed by three of the owners of undivided interests therein, and the remaining owners, seven in number, were made defendants. The defendants employed a solicitor, who, upon examination, found errors in the bill of complaint relative to the land sought to be divided in kind. An answer was prepared for defendants by their solicitor and duly filed. In this it was shown that eighty acres of lands owned by all the parties, and which they desired and intended to be partitioned, were omitted, and that other lands, amounting to eighty acres were included in the bill which were not owned by the parties, and that forty acres which the bill charged were subject to partition were a part of the homestead of the widow, and therefore exempt, and could not
The law provided in the statute, section 3542, Code of 1906, touching the allowance of solicitor’s, fees in proceedings for partition, was very clearly stated and well settled in the opinion delivered by Chief Justice Campbell in the case of Hoffman v. Smith, 61 Miss. 544. This case has been followed by this -court in a number of cases, including the recent case of Hardy v. Richards, 60 South. 644. Judge Campbell in his opinion stated that the statute “is designed particularly for cases in which some of the owners in common of land proceed for partition, and the proceeding, not resisted by others, is conducted by the solicitor of the complainant, without any other solicitor being engaged in the cause. But it is not limited to those. The power to allow a reasonable solicitor’s fee exists ‘in •all cases of the partition or sale of property for division of proceeds. ’ . . . The statute should not be permitted to be abused.' The discretion it confers should be employed to maké the common property bear the burden ■of a common benefit inuring to all the owners who had no just occasion to have their own counsel in the case.
The record in this case shows that the defendants had a “just occasion to have their own counsel in the ease.” The exigency of their cause was such as to justify them in the employment of a solicitor. Therefore they should not be required to pay a portion of the fee due to the solicitors of complainants. It was; the defendants’ solicitor who found several errors in connection with the statement of the property to be partitioned. It was very important, and, in truth, necessary, for the proper and legal division of the land, to have these errors corrected. The complainants recognize the value of the services of defendants’ solicitor hv obtaining leave of the court to correct the errors. Considering all the facts as presented in this case, we conclude that the chancellor erred in making the fee of the solicitors for complainants a common charge upon the'interests of all the parties.
We notice in the papers in this case an instrument, signed by four of the parties, in which they agree that the final decree of the chancellor may he carried into effect. Among these is one of the appellants, Mrs. Mary E. Carpenter. .Two of the defendants in the court below, who did not join in the appeal, and did not sign the agreement just mentioned, were summoned to appear in this-appeal, but they have made no response.
The decree in this case is therefore reversed, in so far as it affects E. M. Carpenter and Earl Carpenter, appellants, and defendants in the court below, and as to them the motion is overruled.
Overruled-
