DeWitt v. Gilleylen

70 Miss. 324 | Miss. | 1892

Woods, J.,

delivered the opinion of the court.

Bills for partition, at common law, were of infrequent occurrence, and applicable only in a solitary case — in proceedings for division of lands held in coparcenary. Bnder our laws, partition of lands held by joint-tenants, tenants in common and coparceners having an estate in possession, and not in inversion or remainder, whether the joint interest be in the freehold or in a tenn of years not less than five, may be made by a decree of the chancery court. Adults, minors and persons non compotes mentis may all be parties •complainants or respondents, and the title as well as right ■of possession may be adjudicated and finally determined between them in the partition proceedings. It has become a favored method in our system of jurisprudence of conveying ¡and fixing title in the endless and constantly recurring instances of landed estates held in common. Vast proportions ■of the real estate in our borders are held under titles declared in partition proceedings. The design of our legislation has been to enlarge the scope of the operation, and amplify and simplify the means of the application, and to dignify and make effective the results attained in all partition proceedings. The subject is segregated from and lifted out of our general act in relation to chancery courts, chapter 59, code 1880, and is given an independent and distinct position in chapter 71. The proceeding has its own separate and clearly-defined rules and regulations, apart from and disconnected with the general chancery law of the state. From first to last, from the filing of the bill to the recordation of the final •decree, we shall find a complete system of procedure, and to this we must turn for the-proper determination of the controlling question presented in the present appeal. And that •question goes to the action of the learned special chancellor in •dismissing complainants’ bill of i’eview, because — as is stated in another ruling below, contained in the record — of the bar to a recovery supposed to be found in § 2693, which •declares that no action shall be brought to recover any property hereafter sold by order of a chancery court, where the •sale is in good faith, and the purchase-money paid, unless' brought within two years after possession taken by the purchaser under such sale of such property. ■ This is part of the general law of the limitation of actions, and is not of force in partition proceedings.

In § 2568, code 1880, will be found the independent, separate and controlling law applicable in the case at bar — a law fixing and determining the force and effect of final decrees in partition proceedings, and binding alike on all parties, adults, minors and persons of unsound mind, and providing the only limitation upon its operation. “The final decree of the chancery court in such case shall ascertain and settle the rights of the parties, and shall constitute an instrument of evidence in all questions as to the title of the lands, which may be .the subject 'of such decree, in all courtSj and shall be conclusive as to the rights of all parties to such suit, subject to the provisions of this act, and subject to appeals and bills of review, as in other suits in the chancery court.” The decree complained of is conclusive, subject to appeal and bill of review, as in other suits in the chancery court.

One of the complainants is yet a minor, and the other has only just attained her majority. They have not appealed from the original decree, but have filed their bill of review within the time prescribed by the general, law for taking bills of review in the chancery courts. Under the general law, § 2681, code 1880, the law applicable to other suits in the chancery court, “bills of review in chancery shall be filed within two years next after the date of the final decree in the cause, and not after; saving to persons under auy disability, as hereinbefore mentioned [§ 2677], the like period of two years after the removal of such disability.”

The appellants were entitled, to an ordinary bill of review, and the action of the court in dismissing their bill outright was erroneous. They should be required to restrict their demand for relief to such as may be afforded them under the ordinary bill of review in chancery. One of the .complainants is still a minor, and the other has just reached her majority, and the court, as the guardiau of the minor’s interests, should have treated the bill as the ordinary one for review, and heard and determined the case in that aspect of the rights of the parties. Though mistaken as to the precise character of the bill proper to be exhibited, and as to the measure of their rights, they should not have been bundled out of court neck and heels.

Reversed, and remanded for further proceedings in accordance with this opinion.