| Miss. | Oct 15, 1891
delivered the opinion of the court.
The decision in the case of Chiles v. Gallagher, referred to in the pleadings in this cause, was a conclusive adjudication against Mrs. Chiles’ title as to the interest in the lands sold by Gallagher to Cameron. Her title was put in issue by the pleadings, and, as to the land owned by Cameron, was decided against her because of defect of proof. It is settled by an unbroken line of decisions in this state that one proceeding in equity to procure a cancellation of a cloud upon his title, must aver in his bill that he is the owner of the property, either by a good legal or equitable title, and, if the issue is taken upon his title, must prove it as laid.
There is nothing peculiar to the proceeding by bill to cancel clouds upon titles, by reason of which a greater or less force should be given to the decisions of the courts on such bills. Whether one proceed in equity to cancel as a cloud the adversary title, or bring an action at law to recover on the legal title, the judgment of the court upon the issues presented must be equally conclusive. In either case, a court of competent jurisdiction applies the law to the facts proved
It is unnecessary to determine whether there has been a final decree as to the interest in the lands yet held by Gallagher. If complainant, as she might have done, had brought to the attention of the chancellor the facts occurring since the decision by this court of the appeal in the case of Chiles v. Gallagher, by supplemental bill in that cause, she could have secured all the relief asked in the present bill, and undoubtedly in such proceeding the decision would have been conclusive. We do not perceive why any different result flows from an independent proceeding between the same parties. But, however that may be, we are satisfied to re-aunounce the former conclusion as applied to the same facts now developed in this cause.
On the principal points of controversy, those relating to the titles of the respective parties to the lands, the decree of the court is correct, aud is aflirmed.
But there is manifest error in the account as stated, for which the decree must be reversed. On the 9th of April, 1889, when Lloyd bought from Cameron the interest in the land -which he had bought from Gallagher, and substituted his property in exoneration of the lands of Mrs. Cameron, an arrangement was made by all parties, the necessary effect of which was to limit the extent of the charge upon the interest of Gallagher in the lands. By.that agreement Cameron assumed the payment of $531.25, and Gallagher personally, and also all the land, was absolutely discharged as to that sum. The debt to Champenois, which remained chargeable on the land, was fixed at the sum of $2,531.25 (principal and interest), and of this sum Lloyd agreed to pay $1,000. This left the remainder, $1,531.35, as the sum then due by Gallagher. While Champenois had the right to go against all the property for all the debt, as between Gallagher and Lloyd, Gallagher’s interest in the land was primarily chargeable with $1,531.25, and Lloyd’s with $1,000. The anteced
It was error, therefore, to charge, as against the lands of Gallagher, to the exoneration of the lands of Lloyd, any part of the antecedent payments made by Cameron. To this extent, the decree of the court below is erroneous as against complainant.
The decree is in another respect erroneous as against Lloyd. He has, since the 9th day of April, 1889, paid certain sums as the annual interest on the whole debt, and by a subsequent arrangement between himself and Gallagher, the latter has secured to him the repayment of one-half of the sums so paid. The chancellor treated this as a discharge of all interest due by Gallagher during the time that the interest was so paid by Lloyd, which was erroneous. If Gallagher and Lloyd had each owed one-half of the debt due to Champenois, the decree in this respect would have been correct. But of the debt, Gallagher owed $1,531.25, and Lloyd only $1,000. By the arrangement between himself and Lloyd, Gallagher has paid only the interest on one-half of the debt ($1,265.62), while the decree credits him with payment of interest on the whole sum he owed — $1,531.25.
We note that the pleadings and evidence disclose that complainant is not the sole heir of her deceased father. But, since no injury would result to Champenois by the failure to make the co-heir a party, if he is permitted to cause sale of the land to be made by his trustee (which the decree permit?), we would not, for that reason, reverse the decree. If sale had been directed to be made by a commissioner of the court, this co-heir would have been a necessary party.
For the errors noted, the decree will be reversed and cause re