Nugent v. Powell, 63 Miss. 99

Nugent v. Powell

63 Miss. 99 | Miss. | 1885

Cooper, C. J.,

delivered the opinion of the court.

Section 1847 of the Code of 1880 authorizes the institution of a suit in equity in any county where the property in controversy, or some part thereof, is situated, or in any county where the defendant or some necessary party defendant may reside or be found. This is a general statute governing the venue of suits in equity in all cases which are not controlled by specific and narrower statutory provisions. But by § 2553 of the code, it is expressly declared that partition of land “ may be made by decree of the chancery court of that county in which the lands, or some part thereof, sought to be divided are situated,” and by § 1833 provision is made for the institution of suits to cancel clouds upon the title of the real owner “ in the chancery court of the county in which the real estate may be situated.” Under the familiar rules of construction that the expression of one thing is the exclusion of all others, and that the words of a general statute are. restricted by those of a special one, these provisions control the venue of suits for partition and to remove clouds, and limit it to the county in which the lands or some part thereof are situated.

Complainants can add nothing to the strength of their position by framing their bill so as to exclude a prayer for partition in kind and seeking a sale of the land and a distribution of the proceeds of sale. On the facts stated they are tenants in common in equity with Powell, and as against him and those claiming under him, with notice of their equitable interest, the complainants are entitled to have relief to the extent of securing a conveyance of the legal title to them of their undivided half interest in the land, and of fixing a charge on Powell’s interest for the one-half of the expenditures made by them in protection of the common- estate; but in this controversy McNeill has no sort of interest, and it is only when the jurisdiction of the court is invoked to cancel his title to the homestead right asserted against both the complainants and Powell that he can be connected with the subject-matter of the suit.

If the suit had been instituted in the Chancery Court of Le Flore County for partition of the land, the court could not in that suit *107have determined the validity of McNeill’s claim to the homestead exemption, for McNeill either has no interest in the land, or if he has, it is that of a sole owner of a distinct part, and not of a tenant in common with Powell. Powell’s remedy is ample and complete by ejectment at law, and he cannot resort to a court of equity, nor can the complainants, because their interest is an equitable one as against Powell, draw into a court of chancery McNeill’s legal title. It is a mistake to assume that § 2576 of the Code of 1880 •authorizes a tenant in common with another to exhibit his bill against his co-tenant, and as an incident thereto to join all parties claiming adversely to both. The purpose and effect of that provision is to give to the court, having jurisdiction over proper parties, power to settle all the conflicting claims of such parties without suspending the suit to await the result of an action at law to settle legal titles, or of an independent suit in equity to cancel a cloud upon the title; but it is not admissible under it to join the holders of adverse titles as parties defendant.

The decree is affirmed in so far as the demurrer of McNeill was sustained and bill dismissed as to him, and reversed in so far as the bill was dismissed as to the other defendants.