57 Miss. 340 | Miss. | 1879
delivered the opinion of the court.
The three complainants purchased, in Sept. 1879, from one
The complainants in their bill, and in their arguments here,
The error in the position of the complainants has its foundation in the supposition that the jurisdiction of the Chancery Court in partition proceedings rests solely upon the statute. This jurisdiction is very ancient in courts of equity, antedating the reign of Elizabeth, and is now, and has been for a long time, one of their most useful and salutary powers. 1 Story Eq. Jur. § 646, et seq. ; Freeman on Cotenancy and Partition, § 420, et seq. At common law, courts of law had no jurisdiction to order partition, except among coparceners. Joint tenants and tenants in common were without remedy in this
We cannot suppose that the legislature intended to limit this right to cases where the interests of the tenants were equal, and in all other cases to compel the parties to submit to a sale in order that there might be a division of the proceeds. At common law, and by the general principles of equity jurisprudence, there was no power to make a sale for partition. The power to order a sale is purely statutory, and can only be exercised in the cases provided by statute. Sect. 1829 of the Code only authorizes a sale when from “ the nature and condition of the lands, and the number” [not the inequality] “ of shares into which they must be divided, it is impossible to make partition thereof fairly and equally without impairing the value of the property.” This is the language of the statute. It does not provide, as contended by the appellants, that a sale shall be made in all cases where the
But it is said the decree is erroneous in ordering a division to be made into two tracts, — one for the complainants, and one for the heirs of Shields. As to -the latter, they make no complaint of the decree. They are minors, and incapable of making an election as to whether they would have partition among them of the share allotted to them jointly. They had not asked for partition either by themselves or guardian. The court found as a fact, that it would be for their interest in this proceeding to have their share set off in solido as against the share of the complainants. This appears also to have been a wise and proper decision for them and their mother, who had a right of dower in their interest. It would be more convenient and useful that this dower should be taken from the whole tract thus set over to the heirs, so as to be in one body. As to the complainants, if we are to regard them, as we think we must under the bill, as asking for a separation of the several interests, they have the right to have the partition, and the decree is a proper step in that direction. After their joint share shall be set apart, and the division confirmed by the court, it will be proper, on the motion of either or all of them, to appoint new commissioners to make partition of their common share among the separate owners ; and when this is done, as their shares will be equal, it will be proper that the allotment shall be by ballot.
We announce, as the true rule on the matters in controversy here, that th'e jurisdiction of the Chancery Court to make partition, in all cases of a co-tenancy, results from its original powers, and is not derived from or dependent on the statute ; that the provisions of the Code regulating the proceedings in partition are applicable only to cases where the shares of the co-tenants are equal, and where, also, no equitable circumstance exists which would require, in order to secure a right
Decree affirmed and cause remanded.