Reinecke v. Reinecke

63 So. 215 | Miss. | 1913

Reed, J.,

delivered the opinion of the court.

Mrs. M. L. K. .Reineeke, a widow of advanced years, was the owner of a lot of land in the city of Pascagoula.' She purposed to divide this land among her several children. On January, 8, 1904, she executed a deed conveying a part of the land,«which she described as lot eight, to a son; on December 6, 1906, she conveyed another part of the land, which is in the deed described as lot seven, to appellee, another son; on September 21, 1905, she conveyed still another part of the land to her daughter, Mrs. Eugenia J. R. White. The several lots were definitely described by metes and bounds in the conveyances. In August, 1908, Mrs. Reineeke had the county surveyor survey and plat the entire original lot she owned, subdividing it into ten lots. The map thereof is of record. Thereafter she conveyed other lots to her children, describing them as shown on and referring to •the map. The children to whom conveyances were made were duly put in possession of their lots.

On March 16, 1910, Mrs. Reineeke filed her bill in the chancery court of Jackson county, No. 1976 on the general docket of that court, against appellee, in which she averred that the map of the county surveyor in 1908 was incorrect, and in which she claimed that there were errors in the descriptions of the several lots conveyed to appellee. The lots were lots seven, conveyed in 1906, before the map was made and filed for record, and lots five, six, and ten, conveyed after the making and recording of the map, and described as shown thereon. She presented with her bill another survey and plat of the land, which she claimed correctly delineated the lots which she intended to convey. This map subdivides the original lot into twelve lots. The measurements of the lots thereon are different from those on the first map. She prayed in her bill that the conveyances to appellee be decreed to be tbe, result of a mistake, that they should be delivered to the clerk for cancellation, and an entry should be made on the margin of the record of such cancellation; and also that entry be ma,de on the margin of the record of the original map canceling it, and that complainant should execute and deliver to defendant, ap-pellee herein, a conveyance of lots five, six, seven, and ten, describing them in the deed as they are shown upon the new map presented with the bill.

Appellee failed to appear and defend the suit. He states he was advised that it was not necessary for him to give any attention to it, and that it would not disturb or injure him in his rights to the lots. The decree, founded upon the bill, declared the conveyances to appellee void, and annulled the conveyances and also the original map, and directed the chancery clerk to enter a cancellation of the deeds and the map on the margin of the records thereof. The decree failed to require the complainant to execute and deliver to the defendant, appellee here, a deed conveying the lots five, six, seven and ten, as shown upon the new map.

Appellee filed his bill in the chancery court of Jackson county, setting out therein the facts above stated, and making parties thereto all persons interested in the land subdivided. He shows in his bill the errors arising from the two surveys and maps, taken in connection with the description in the several deeds of record, and the decree in the case No. 1976, filed March 16, 1910, by Mrs. Eeinecke against appellee, and prays the court to order a new survey of the land, in which the rights of the several parties will be recognized, the descriptions of the lands definitely established, and the conflicting claims of the different owners of the lots be settled and quieted. The chancellor overruled a demurrer interposed to the bill.

Appellants claim that appellee was bound by the decree rendered in the case filed March 16, 1910, No. 1976, and that the disposition of that case was res judicata of the matters in the present cause. The chief purpose of the bill in the case numbered 1976 was to vacate a recorded map. Provision is made in section 4969, Code of 1906, for proceedings when an owner of land shall desire to alter or vacate a map showing an addition to a city, town, or village. Under this statute it is necessary for such owner to set forth particularly the circumstances of the case, given an accurate description of the property and the names of the persons to -be affected therby or interested therein, the parties so named to be made defendants to such proceeding, and publication of summons to be made for all persons who may feel disposed to object, which publication shall clearly state the objects and purposes of the petition in the proceeding. In the case numbered 1976 Mrs. Reinecke failed to give the names of the persons interested and to make such persons parties, and, in short, failed to comply with the-provisions of the statute.

We also note that the decree in case No. 1976 did not fully respond to the prayer of the bill. It only ordered a cancellation of the deed and map, but failed to further order the complainant to make a new conveyance of the lots to defendant. The court should have rendered a decree fully in accordance with the prayer and following the entire bill, which, in default of an answer by defendant, was taken as confessed. The clear intention of the bill was to vacate the original map, so that the map offered would be effective as showing the division of the property, and to cancel the conveyances, so that new conveyance might be made describing the property as shown on the new map; but the decree failed to do this in full. The decree, therefore, is not valid, and the ap-pellee is not bound thereby.

The disposition of case No. 1976 is not res adjudicata, of the matters presented in the case before us. The differences and matters between the parties vTere not fully and definitely settled by tbe decree, the judicial decision in the case.

It appears that by reason of the variance in the measurements and number of the lots on the two maps of record, and the variance in the descriptions in the several deeds and the maps, there is confusion in the descriptions of the lots in the subdivision, and that there are conflicting claims among the several owners of the lots. We believe that a court of equity should entertain the bill for the purpose of properly correcting the mistakes which have been made, and of fully and definitely adjusting the conflicting claims of the several owners. Therefore we conclude that the chancellor was correct in overruling the demurrer.

A firmed.