46 So. 538 | Miss. | 1908
delivered the opinion of the court.
The record shows that only two persons are interested in this land, and the quantity of land aggregates one hundred acres. There was no notice filed under Code 1906, § 1941, of a desire to have the witnesses examined in open court; nor was there filed any agreement in writing to that effect. Since there was no notice or agreement in reference to taking oral testimony, none could have been taken, and the correctness of the chancellor’s decree must be determined from the record alone.
Where it is possible to order a partition in kind with due consideration for the interest of all parties, that mode of partition is preferable under the law. A sale for partition is only ordered where it will better promote the interest of all parties
In the case under discussion none of the requisite facts authorizing a sale for partition, instead of partition in kind, are to be found in the record. True it is that the decree of the chancery court recites that the cause coming’ on to be heard “on the bill, amended bill, answer, proofs, exhibits, and argument of solicitors, and the same being duly considered, the prayer of the bill is granted, and the land set forth in the pleadings is ordered to be sold, it appearing to the court that it is not susceptible of division,” etc. This decree for sale is manifestly wrong. The chancery court could have had no evidence before it warranting this conclusion which is not now before us, since oral proof was not permissible in the attitude of this record at the time of the hearing. There is no proof in the record going to show that a division in kind could not be made. There were only two parties interested in the land, and the quantity to be partited was one hundred acres. Therefore, on the face of it, the record shows that the land- could be divided in kind. We can hardly imagine a case where it would be necessary to sell one hundred acres of land in order to equitably partite same though it is possible that such ease might exist. The case of Cox v. Kyle, 75 Miss., 667, 23 South., 518, is directly in point here. There is neither necessity nor propriety shown for the sale of this property for partition.
We do not deem it necessary to enter upon any. general discussion. as to when it is proper to allow a solicitor’s fee under Code 1906, § 3542. It sufficeth to say that, in no case can there bo but one fee allowed, and in this case it was improper to allow any solicitor’s fee taxable against the interest of Smith.
The decree is reversed and case remanded, with leave to cither party to reopen the case and take any further testimony desired.
Reversed.