Wells v. Ellabee

46 So. 497 | Miss. | 1908

Calhoon, J.,

deliverd the opinion of the court.

There had been a bill for partition between the appellants and other parties, which had resulted in a decree for sale for partition. This sale for partition had been made, and all the property so sold had been bought at the public sale of the commissioner of the court by the appellees. This sale and purchase had been madeori January 2, 1905, and on April 4, 1905, that commissioner’s sale jvas duly confirmed by the chancery court, which rendered the decree for sale for partition. On January 23, 1907, Ella-bee and another, the appellees, filed their bill, setting forth the foregoing facts, and prayed a reformation of the deed given them by the special commissioner, which deed conformed in all respects to the bill and decree of confirmation; and in this bill they prayed to have stricken from the commissioner’s deed certain parts of the property as conveyed by him, and to make it read differently and include other property than his deed .covered, and differently from the final decree, and differently from the description in the bill for partition. In the progress of the proceedings for this reformation, Ellabee and another, the complainants, had on their own motion a dismissal of their bill as to three of tbe parties defendant to it, all of -whom were also parties to tbe original bill for partition. This, of course, is fatal. A partition decree is-not susceptible of correction without jurisdiction of all the parties to it, even if this bill for reformation could be entertained by the chancery court. But it cannot be so entertained. A purchaser at a sheriff’s sale, or a commissioner’s-sale, is a purchaser in invitum, and the doctrine of caveat emptor applies in its full force.

The decree below is reversed, and the bill dismissed.