Wildy v. Bonney

28 Miss. 710 | Miss. | 1855

Mr. Justice HANDY

delivered the opinion of the court.

This case has been heretofore before this court, and is reported in 26 Miss. R. 35.

Upon the new trial awarded by that decision, the evidence in support of the title of the lessor of the plaintiff, and upon which a judgment was rendered in his favor, is as follows: —

It appeared that the land in controversy had been purchased from the United States by one William Hall, who died, leaving five heirs at law, of whom two were Archibald C. Hall and Rhoda Pierce, the wife of one Marcus Pierce. The plaintiff then read in evidence a record of proceedings in the probate court of Yazoo county upon an application for the partition of the lands of William Hall amongst his heirs, by which it appears that the commissioners appointed to make partition thereof made an allotment among the several heirs, and reported the same to the probate court, but that this partition was afterwards set aside. A second report was then made, in which the commissioners state that the three other heirs and “ A. C. Hall, for himself and Mrs. Pierce,” “ came before the undersigned (commissioners), and agree to the following division : Archibald C. Hall agrees to take, for his own share and Mrs. Pierce’s, lots number two and five, by being paid by the other parties two hundred and fifty dollars;” and the other heirs agree to take certain specified lots for their respective shares. This report was returned to, and duly confirmed by, the court; .and it appeared that the land in controversy was the same as that designated in the commissioners’ report as lot number two.

The plaintiff then showed a judgment against Archibald C. Hall, and execution thereon, under which the plaintiff’s lessor became the purchaser of the land in controversy; that A. C. Hall was in possession of the premises at the time of that sale; that he claimed title to Mrs. Pierce’s share of the lands at the time of the division by the commissioners, and that after the division he took possession of the lots two and five, claiming title thereto.

This being all the evidence in support of the title of ‘the plaintiff’s lessor, the first and only question necessary to be considered is, whether it was sufficient to maintain the action, and whether, in that respect, the court below erred in overruling the motion for a new trial.

The title relied upon was claimed through Archibald C. Hall, whose title is claimed to be derived from Mrs. Pierce, and is founded on the partition made by the commissioners appointed by the probate court; and this presents the question, whether the action of these commissioners divested the right and interest of Mrs. Pierce in the lands, and vested the same in Archibald C. Hall. And we are of opinion that it did not.

By the provisions of the act of 1821, Hutch. Dig. 670, § 112, the probate court was empowered to appoint commissioners to make a division of lands between the heirs of an intestate, “ the metes and bounds of each heir’s share to be ascertained” by the commissioners and reported to the court. The object of the statute was simply to have partition made to and among all the heirs, ascertaining the share of each of them separately. No power was given to the court or its commissioners to divest the title of any one of the'heirs, and to vest it in another heir, so as to pass the legal title. The simple and sole duty was to ascertain the share of each heir. Private agreements between the parties, by which the share of one was to be divested and allotted to another, cannot be regarded as giving to the action of the commissioners the force and effect of divesting the claim of one and vesting the legal title thereto in another. If, therefore, the commissioners’ report of partition intended to allot to Archibald C. Hall his own share of the land, as well as that of Mrs. Pierce, by reason of any claim of Hall to Mrs. Pierce’s share, such an act was beyond the power of the commissioners. It was their duty to make partition between all the parties entitled, allotting to each one his or her share in severalty; and they had no power to recognize transfers of interest between the parties, and to allot to one party the share to which another was entitled. Such a power, especially if, as in this ease, the exercise of it is claimed to have the effect to divest the interest affected, would be dangerous in the extreme, in giving to an unsuitable tribunal the right to act conclusively upon the many important legal questions that would necessarily arise as to the evidence of the transfer and its legal validity.

We think, therefore, that the proceedings of the commissioners did not vest the interest of Mrs. Pierce in Archibald C. Hall, and that such an effect could not be given to them by the order of confirmation of the probate court.

But it is not improbable that it was intended by the commissioners that Archibald C. Hall was acting as the agent of Mrs. Pierce in agreeing “to take for his own share and Mrs. Pierce’s lots number two and five,” and not in his own right; for the report does not state that he was acting in his own right, and it shows no transfer from Mrs. Pierce to Hall. If it was intended to allot the parcels of the land designated as lots No. 2 and No. 5 to Hall and Mrs. Pierce, giving to each his or her share in his or her own right in severalty, which was the duty of the commissioners, the report is void for uncertainty; for it does not show to which of these parties either of those lots was allotted and set apart.

Without examining-the evidence offered in behalf of the defendant and rejected by the court, we are of opinion that the evidence on the part of the plaintiff was insufficient to sustain the action.

The judgment is therefore reversed, and the cause remanded for a new trial.