51 Miss. 356 | Miss. | 1875
delivered the opinion of the court.
The complainant became the purchaser at sheriff’s sale, of the land in suit, under a judgment recovered against Z. T. Tatum. This purchase was made in 1870, of the undivided one-third interest of said Tatum in the lands. The complainant traces the title to the lands as follows, viz: On the 20th of August, 1866, one J. W. McCarley conveyed to Tatum the one-third share or interest of the west half of sec. 5, T. 3, R. 5 east, and on the same day Tatum conveyed to one Martin Weeks the undivided one-third of the southwest 1-4 and the west 1-2 of the northwest 1-4 of sec. 5, T. 3, R. 5 east, and on the same day Martin conveyed the same lands to defendant Waldron. These several deeds contained general covenants of warranty. The defendant Waldron was owner of the other two-thirds of the land, derived from other grantors.
The complainant claims that he is owner of one-third of the land by purchase as aforesaid ; that the chief value of the property is, by reason of a water, saw and grist mill on the premises ; that the premises cannot be equally divided, and the relief sought isa sale and division of the money between himself and Waldron, according to their interests.
Meek, in his deposition, says that it was supposed to be necessary for McCarley to make the deed to Tatum, and the latter to him in order to perfect the chain of title. Tatum never claimed to own the land, nor did he ever pay anything for the land. Smith had some interest in the mill, and Mrs. Tatum, the wife, gave Smith another piece of land for that interest. J. W. McCarley, in his deposition, states that Z. T. Tatum bargained with him for the land, not in his own, but in his mother’s name. He further says that it is the same land which he sold to Smith, and which Smith sold to Mrs. Eebecca Tatum, but that he made the deed to Z. T. Tatum, because he received the pay from his mother through him as agent. He says Tatum never did own the land and never claimed it. Mrs. Tatum paid him all the purchase money. Tatum told witness that the property that paid for the land was his mother’s. Booker Pate, who was present, says that the deed was made to Tatum for the purpose of fixing the title in Waldron. Tatum at no time had interest in the property. Tatum says, in his deposition, that the deed was made to him in order to save the necessity of his wife’s going to Eipley. That it ought to have been made to his wife; that the consideration was in part paid in land and the products of the mill. The land used belonged to his wife. Tatum was insolvent. The testimony is so meagre, that he real transaction between the parties is obscure. We may as
The relief claimed by the complainant is a sale, and partition of the money, instead of the land itself. The assertion of such right implies a joint ownership between the complainant and the defendant. The special remedy is not framed on the predicate that the complainant may litigate and establish his right against the defendant, and after that is done, in the same suit, have a sale of the joint property.
The rule is that a court of equity will never grant relief when
Other claimants must establish their right by suit at law, and obtain actual seizin before they can demand partition. Price v. Crone, 44 Miss., 577; Clapp v. Bromagham, 9 Cow., 530; Wilkin v. Wilkin, 1 Johns. Ch., 111. A mere right of entry will not sustain a proceeding for partition. Brock v. Eastman, 28 Vt., 658.
Conceding (but we express no opinion on the point) for the argument, that the complainant acquired a legal title to one-third of the land, the extent of his right, according to the case made in the record, is a right of entry. Waldron derivéd his right to two-thirds of the land from grantors, strangers to this record; he claims a right to the other third adversely to the complainant. If, therefore, the complainant has a legal right, it confers the right of entry and no more.
He must vindicate that right and acquire a seizin in fact by suit at law before he is entitled to a partition, or if that cannot be had, then in its stead, a sale and partition of the money.
We think, therefore, the decree of the chancellor dismissing the bill was right, and it is affirmed.