86 Miss. 641 | Miss. | 1905
delivered the opinion of the court.
The original bill in. this cause avers that complainants and certain defendants therein named — to wit, B. E. Dean, J. A. Dean, Mrs. Mary Harper, B. E. Harper, Mrs. Kizzie Johnson, Carrie Dean, and Ida Dean — are tenants in common, with right of possession, of the entire interest in certain lands described in the bill, of which partition is sought; that D. W. Sweatman, Elizabeth E. West, Oliver Larkin, and G-eorgeanna Turner claim some interest in said lands under and through their co-defendants, and that they are joined as parties defendant to the bill so that they may propound and indicate their claims, if any they have, to said lands. Oliver Larkin and Georgeanna Turner answer, disclaiming all title to the land and interest in the controversy. D. W. Sweatman, B. E. Dean, Mrs. Mary Harper, and B. F. Harper answer, admitting the relationship
We are not able to determine precisely what evidence the court h'ad before it when it rendered the original decree for partition in case at bar, and we do not deem it specially important that we should know. Nor do we deem it necessary to determine upon whom was the burden of proof upon the hearing of the original bill and answer. It is clear that all that was, necessary of the record in cause No-. 136Y — -to wit, the bill, the original decree, the report and decree of confirmation, and process issued in said cause — were before the court on the hearing of the exceptions; and these conclusively showed title in exceptor Sweatman as against any collateral attack. This case is not within the principle of Norris v. Callahan, 59 Miss., 140. The decree in that case was for sale of lands to pay debts of testator. It was a final decree. It could not be opened by exceptions to report of sale. A decree directing partition of land is interlocutory. Gillylen v. Martin, 73 Miss., 701 (19 South. Rep., 482). The interlocutory orders and decrees made by the court in a suit for partition are under the absolute control of the court, and at any time before the final decision may bel
Reversed and remanded.