Wilson v. Duncan
44 Miss. 642
Miss.
1870
Check Treatment
Sihrall, J.:

Sarah L. A. Duncan, a minor, by her guardian, C. G. Mitchell, filed a bill in chancery, against E. C. J ones ancl his wards, Thos. H. and Nancy I. Duncan, for an account of the rents and profits of certain lands, which were in his exclusive possession, as such guardian, ancl which lands descended from their father to the said three minors, in equal parts. The bill averred that the personal estate of these children had been wasted, ancl that the only means of support of his ward,-Sarah A. Duncan, was her third interest in these lands ; that it was to the interest of all the children, that the lands should be sold ; that a partition could not be made, and a necessity for this reason existed for the sale.

Jones, the guardian, admitted the material allegations of the bill, and acquiesced in the propriety of the sale. A decree was made appointing Enoch O. Bell, a commissioner, to sell the land for cash, make a deed to the purchaser, pay the costs to be taxed, and report at the next term of the court, when the money would be disposed of by the further order of the court.

In July 1870,. the commissioner filed his report, showing a sale of the land to several purchasers, for the aggregate *649price of $6,237 cash, and that having paid sundry items for costs, expenses, and counsel fees to complainants’ solicitors, there was left in hand $582 41 subject to the order of the court. At the August term following, Jones, guardian, exhibited exceptions to the account. 1st. To the counsel fee of $311 87; and 2d. That the chancery court had no j urisdiction to sell the lands of infants, and the sale was therefore null and void. At the same term of the court, Thos. B. Wilson, who was a purchaser of part of the lands, on his petition, was made a party defendant, and permitted to jfile exceptions to the report. Whereupon he objected to all the proceedings under the decree, as null and void, and asked that the decree and sale be set aside and that the deed to himself be surrendered and canceled, and the money paid by him to the commissioner be refunded. The first exception taken by Jones, was sustained; his second exception, and also the one made by Wilson, was overruled, and from this decision, Jones and Wilson took separate appeals.

The error assigned here, is the overruling of those exceptions ; and that involves the question of the jurisdiction of the chancery court to order a sale of the lands of infants, held in joint tenancy, or as tenants in common, on the state of facts made in the pleadings.

In Rozens v. Dill, 6 Hill (N. Y.), 416, it was said that there was no inherent original jurisdiction in a court of equity, to sell the land of an infant. Lord Hardwicke declared in Taylor v. Phillips, 2 Vesey, jr., 23, there was no 3nstance of the court binding the inheritance of an infant, by any discretionary act of the court; as to personal things, it has been done, but never as' to the irheritance. Calvert v. Godfrey, 6 Beav., 97; Stone v. Tweed, 2 Bro. C. C., 243. These authorities go to the point — that the court cannot direct a sale on the mere allegation that it would promote the interests of the minor. The argument is addressed to us on behalf of the appellants, that the jurisdiction to sell the real estate of minors, pertains exclusively to the probate.court. ' Section 18 of the Devised Code, under the title “ Of the duties and *650powers of the guardian,” contain these provisions. Code, 463, art. 150. The probate court, when necessary for maintenance and education, may allow a sale of part or the whole of the ward’s land. Article 151, may direct sale of the land in whole or part, “ when the guardian may think it would be for the interest of the ward.” Article 153, the guardian may sell the ward’s share, when there has been a descent or devise jointly, “ one or more being minors, and an equal division cannot be made,” or the court may order the whole to be sold, and a distribution of the money among those entitled. It seems to be clear that an application to sell in any of these circumstances, must be made by the guardian, and they do not embrace the case of adults ; except there may be adult heirs and devisees, when the guardian proceeds under art. 153.

But these provisions of the statute, are not all that apply to the sale of the lands of joint tenants, and tenants in com mon. In proceedings for partition, if the commissioners report that none of the parties will take the share containing the buildings, and pay the excess of its valuation over the other parcels; or, “ if no division can be made,” the judge may order the commissioners to sell the entire premises on such terms as he may prescribe. Rev. Code, 319, art. 59.

The chancery court has jurisdiction to order the sale of u any real estate held in joint tenancy, or tenancy in common, when a sale will better promote the interests of all parties than a partition.” Rev. Code, 551, art. 73. If the lands are not susceptible of a division, a clear case is made of the necessity and benefit of a sale. Of sufficiency of the reason for the sale, the court is to judge. The power to make the sale of real estate jointly held, is conferred, and the title will pass to the purchaser, although the court may have decided erroneously as to the matter of benefit to the parties. Like all other judgments, where jurisdiction obtains over the subject matter and the parties, it is valid until reversed or .vacated. But it is objected that cognizance over the subject, must be limited to cases where all the tenants of the estate, are adults, because the constitution of *6511882 and amendments thereto conferred exclusive jurisdiction on the probate court, over matters testamentary, admin-1stration and “ minor’s business.” It would be profitless, now to trace the boundaries of the chancery and probate courts, as defined in the cases of Blanton v. King, and Browder v. Carmichael, and the many others subsequent thereto* Dismissing this subject in Servis v. Beatty, 36 Miss., 83, the court observed, “ recourse must be had to the acts of the legislature, and to other systems in which the principles of equity jurisprudence are applied, and the subjects of its jurisdiction defined,” in order to learn the extent of its cognizance.

The constitution of 1832, granted to the chancery court “ full jurisdiction in all matters of equity.” The act of 1833, Hutch. Code, 679, conferred on the probate court power to order the sale of lands of joint tenants and tenants in common, whenever an equal division can .not be made. This is doubtless the original of art. 153, in the revision of 1857. So that in rather broader terms, the 'jurisdiction granted by the act of 1833 to the probate court, is, by the Code of 1857, transferred to the chancery court. It is manifest that the act of 1833 was not confined to the case where one or more of the tenants were infants; the faetón which the jurisdiction by this act attached was, that an ‘‘equal division could not be made.” In the code, the right of the chancery court to sell, arises when it shall appear “ to be to the interest of all concerned.” We are reminded by the court in Servis v. Beaty (supra,), that for the sources and extent of equity jurisdiction, we must look to the statute and the system of equity law. Here is a statute expressly empowering the chancery court to order sale of realty held by coparceners, tenants in common, and joint tenants. At common law there seems to have been no authority in any of its courts to sell the land in the condition of facts mentioned in our statutes. At law, there was the ancient writ of partition sent down to the sheriff, directing him, with his jury, to make partition, but for any inequality in the several parcels, there *652was no power to award compensation. On account of the inadequacy of this remedy to do complete justice, certainly as early as the reign of Queen Elizabeth, and perhaps earlier, the high court of chancery in England entertained bills for partition. But in the origin of the jurisdiction there were special reasons, as where one party had expended large sums for improvements. Although a lien does not attach on the lands, yet a court of equity would direct an account, and compel compensation. So when one tenant in common has been in the exclusive perception of the rents and profits, an account will be decreed as well as partition. 1 Story Eq., § 655. So also, one tenant may be compelled to pay owelty by way of equalizing the several shares of the premises.

The remedy in chancery was so much more convenient and full, that it is (where not regulated by statute) resorted to almost exclusively, and it is now the settled doctrine that it is not necessary to state in the bill any peculiar ground of equitable interference. Mitford PL, 120; 1 Eou. Eq., B. 1, chap. 1, § 3, note f. At the time* of the adoption of the constitution of 1832,included in the grant of “full jurisdiction in matters of equity, ” was this cognizance over the partition of lands, and if the statute had not introduced a simpler, cheaper and more expeditious remedy, it would doubtless have been employed. To this original jurisdiction of a chancery court, the Code of 1857 merely added authority when the necessity existed to sell the lands and distribute the money. The probate court is constituted with exclusive jurisdiction over minors’ business. The court of chancery with “ full jurisdiction in matters of equity, ” it would seem to us, looking to the general scope of powers and duties of these tribunals, that -it would be more natural, more in harmony with its jurisdiction and remedial agencies, that the power to sell the land of coparceners and tenants in common should be referred to the chancery than to the probate court.

We cannot concur with the counsel for the appellants, that the infancy of one or more of the tenants in common, etc., interrupted the jurisdiction. It might interfere with the *653present conveyance of the minor to the other tenant, but did not hinder an assignment of a separate possession. Such decrees, like all chancery decrees affecting infants, gave them a day after attaining majority to show cause. But in England this has been altered by act of-parliament. The cases in New York, to which we were -referred, arose under peculiar statutes. Portley v. Kain, 4 Sand. Ch., 509. The words were “ any one or more being of full age. ” The vice-chancellor remarked that these words were introduced into the revised statutes in conformity to the decision of the supreme court in Doe ex ciem Gillespie v. Wooísey, 11 Johns., 455. This case occurred under the act of 1785. The objection to the partition was that one of the applicants for partition was an infant. The 15th section of the act under which the proceedings were had — “ it may be done at the instance of one or more of the parties interested in the lands to be divided. ” It was held, therefore, that an infant was as clearly ■ embraced in the-act as an adult. The language of article 73, p. 551, of the code, is almost identical with the New York statute of 1785, to-wit: “The chancery court may, upon bill filed by any of .the parties in interest, - order a sale,” etc. The right of access to the chancery court is -without limitation or restriction, embracing infants, as well as . adults; and we have placed the same construction upon it-as was givén a like'statute by the supreme-eourt-of New York. We think, the counsel for the .appellant; is mistaken as:to the. character of the decree for the salé' “and "the account. It is final" and not interlocutory, -and was.- not,--therefore, • under ■the-cohtrob of. the .chancellor after- tb.e ^expiration >of. the, term at which it was passed. In Robertson v. Johnson, 40 Miss., 502, a decree foreclosing theyendqr’-sTieaj- arid-directing the-salej-was held to be-'finalj" and -partakés of this' character, although-there has been no confirmation of th.e sale.,-, .The acts of the commissioner in-making the-sale, and report,'"are ministerial and executory."' The ¡confii-iriátípa .isftlie .¿dpptipn and-rati fi--. cation of his acts-as properly done:- - - - ■ ’

Concurring with the chancellor that there was jurisdiction *654to sell the lands in controversy, there is no error in tho ruling complained of. This conclusion makes it unnecessary to consider the other questions made in the argument.

Decree affirmed.