Hoel v. Coursery

26 Miss. 511 | Miss. | 1853

Mr. Justice Fishbe

delivered the opinion of the court.

The object of this bill is to enjoin the appellee from further prosecuting an action of ejectment, brought in the circuit court of Claiborne county, to recover certain .lots situate in the town of Port Gibson, in the possession of the appellant.

The bill alleges that one Samuel Gibson, in his lifetime, was the owner of the lots ; that by his last will and testament, he directed them to be sold by his executors; that, acting under this power in the will, they sold the premises to Parmenias Briscoe, who sold the same to Elijah Bland, the husband of the appellee, and received payment therefor from Bland; that he died without receiving a deed from Briscoe, and that the deed was afterwards made to the appellee, as the administratrix of her deceased husband, Elijah Bland.

The complainant alleges that he is in possession of the premises by virtue of a purchase from persons who derive their title from the heirs of Bland; and that, inasmuch as he in his lifetime paid the purchase-money to Briscoe, the appellee ought in equity to be treated as a trustee holding the title for the benefit of Bland’s heirs. The general correctness of this position cannot be controverted, except so far as the dower interest of the appellee may be concerned ; a question which it is not necessary at this time to decide, as she has died without having it allotted to her in the mode prescribed by law.

Assuming that the lots were held in trust by the appellee for the heirs of Bland, a position about which there can be no controversy, the ease is narrowed down to a mere question of fact, to wit, whether the allegation of the bill, that complainant is in possession under a title derived from Bland’s heirs, is true. So far as the title of R. J. Bland, one of the heirs, is concerned, the testimony shows that he conveyed his interest on the 23d of February, 1837, to one Renaud, who afterwards conveyed to the persons from whom complainant claims title. It is, however, unnecessary to be minute in the statement of these several conveyances, as the right of R. J. Bland to one undivided moiety of the property is admitted by the answer; and it may therefore be stated, in general terms, that to the extent of this interest, the appellee ought to be perpetually enjoined from disturbing the possession of the complainant.

In regard to the interest of the other heir, there is nothing amounting to evidence, showing that she has ever parted with her title, or that it has ever been legally divested. The facts are these. She was in 1834 a minor, and the ward of her brother, R. J. Bland. It appears that he, as her guardian, obtained an order of the probate court of Claiborne county, authorizing him to sell her interest in the lot; that he accordingly made, a sale, and became himself the purchaser, on the 4th of April, 1835. A report of the sale appears to have been made to the court on the 22d of June, 1835; but there is no order of confirmation of the sale till the October term, 1841, of said court. This is all the evidence on the subject. Admitting that the order to sell was regularly made, and that the guardian could become the purchaser at his own sale, or in other words, that he could be both vendor and vendee, it does not appear that the sale was ever perfected by the execution of a deed conveying the ward’s interest in the premises, or that the guardian ever paid the amount of his bid; without this showing, it certainly could not be pretended that a court of equity, at this late day, would sanction the purchase by the guardian.

But there is still a more fatal objection to the sale. No report of it appears to have been confirmed by the probate court till October, 1841, more than six years after the sale had been made, and nearly a year after the death of the guardian. The statute requires the sale to be reported to the first term of the court, after it is made. The party interested, knowing the day of sale, would know from the law prescribing the guardian’s duty in this respect, what term of the court to attend, to enter her objections against the application for confirmation of the sale. Notice of the time of the sale might be construed to be notice to attend court at a particular term to interpose her objections against the action of the guardian. But it could not be held to be notice for any other term, unless the record showed a continuance of the application; and hence, the order made in October, 1841, without notice to the ward, must be treated, to say the least, as voidable, if not absolutely void.

We are therefore clearly of opinion, that, as to the interest of this heir, the bill is not sustained by the testimony; and that the action at law ought to proceed to trial and judgment for the appellee, or those representing her as heirs. The judgment, however, not to be enforced against the interest of R. J. Bland in the possession of the complainant.

The complainant may be treated in all respects as a tenant in common with the -other heir of Bland, and may assert against her such claims or rights as one tenant in common may assert against his cotenant. But as this heir was not made a party to the bill in the court below, no claim for improvement upon the property could, for this reason, be considered by the court; and hence we give no opinion upon this branch of the case.

The decree of the chancellor will be reversed, the cause remanded to the court below, with directions for that court to ascertain what portion of the premises is in the possession of the complainant, by virtue of the conveyance of R. J. Bland, so far as the same conveyed his interest as one of the heirs of Elijah Bland, deceased, and that the present appellees, against whom this cause has been revived as heirs of Elizabeth Coursery, release such interest to the complainant. As to all other matters, we leave it to the chancellor either to dismiss the bill without prejudice, or to permit the complainant, if a sufficient showing shall be made, to amend the bill, and to proceed to final hearing as to such matters.