Pankey v. Howard, 47 Miss. 83

Pankey v. Howard

47 Miss. 83 | Miss. | 1872

SlMRALL, J.:

The bill was filed for the purpose of selling two parcels of land, and the allegation that partition could not be conveniently made, and that it would be for the benefit of the owners that both should be sold together in one body. These tracts, whilst distinct, were adjoining, and united would make a valuable property, and would produce more money at a sale in a body, than separately.

One parcel containing two hundred and forty acres, is the property of the heirs of Washington Stanfill. Martha Howard inherited one-fourth, the other three-fourths were respectively inherited by heirs of Edny Beall, of Mary Edwards, and of John Stanfill.

The other tract, containing about five hundred acres, descended from Nathan H. and Mary Edwards, father *87and mother to their children and heirs, (who are minors,) to wit: Drucilla, Nathan H., and James Edwards. Mary Edwards, the mother of these children, had one-fourth interest in the above named tract of 240 acres, which descended to them on the mother’s death. But the other co-tenants of that tract had no interest in the last named parcel of 500 acres.

The question, therefore, is whether there is such a unity of title and tenancy as would authorize the chancery court to decree in this suit a sale of the two tracts.

Jurisdiction of the chancery court to make sale of lands held in joint tenancy, tenancy in common, or coparcenary, is defined by art. 73, page 551, Code 1857, to be executed, “ whenever, in the opinion of the court, a sale will better promote the interest of all parties than a partition.”

The joint tenancy must attach to the particular lands proposed to be sold, and a sale must be more advantageous to the tenants than a partition. If there be several distinct, separate parcels, each must be held by the same tenants, as coparceners, joint tenants, or tenants in common. If they would not be entitled to partition, of a particular tract, neither could they or any of them, demand a sale; for the right to sell rests upon the superior advantage of a distribution of the money, produced by a sale, to a partition of the land itself.

The bill was brought by Mrs. Howard and husband, the latter being guardian of the Edwards’ heirs, and Wallace, ^guardian of the minor, Stanfill. The larger tract, containing 500 acres, belongs exclusively to the Edwards’ heirs; the ward of Wallace has no interest in it whatever. There is a tenancy in common between the Edwards’ heirs, Stanfill, the minor, Martha Howard, and the heirs of Edny Beall, in the smaller tract of 240 acres. But that tenancy does not .extend to the 500 acre tract.

It would be legitimate, under the statute, as between *88all the parties to this suit, to bring a bill in chancery for the sale of the 240 acre tract. So, too, a bill might be maintained as between the Edwards’ heirs, for the sale of the other tract. But to that suit, the co-tenants of the 240 acre tract would be unnecessary and improper parties, because they have no title or interest in the land.

The grojmd made in the bill for the sale, is that the two tracts united would bring more money than a separate sale of each. That might be well enough if all the tenants of the smaller tract had a like interest and tenancy in the larger. To put the proposition to another test, would upon the sale, all the parties having title to the 240 acre tract, share in the proceeds of the other tract. We have seen .that they would not.

We are satisfied that the chancery court could not, within the purview of the statute, order a sale of lands held as these lands were.

The service of the citations on the defendants is insufficient, and’ has been so uniformly held, since the adoption of the Code of 1857.

The decree is reversed, and ordered here that the suit be dismissed.