68 Miss. 714 | Miss. | 1891
delivered the opinion of the court.
1. If all the judgments against It. W. and C. L. Hyatt were absolutely void, there was not an outstanding, paramount lien on lot 131, and the purchase of the interest therein of E. W. and C. L. Hyatt by the appellants, at execution sale, conferred no title, and imposed no obligation upon appellee to reimburse appellants for the sum so expended in extinguishing such supposed lien. But an inspection of the record fails to satisfy us that the judgments were void. The various summonses were, apparently, properly executed by a competent officer. The fact that in one of the suits against E. W. and C. L. Hyatt, the summons was not served upon C. L. Hyatt, and that no judgment was entered against him, does not assist appellee’s contention. While no interest of C. L. Hyatt was vendible under the execution issued on the particular judgment,
2. In 1865, under the will of L. L. Hyatt, appellee and her four children, became^ tenants in common of the lot 131. We must presume from the evidence before us that these children were minors, and that appellee was their guardian. Without any change of this trust relationship, and without any change in the estate in common in said lot, appellee acquired a tax-title to an undivided half interest in the lot, and now claims title to the entire lot by possession of ten years. She cannot be permitted to do this on two grounds, viz: (1) She was tenant in common at the time of her purchase from the state, and her purchase cannot be asserted adversely to the rights of her co-tenants. (2) She stood in the relation of guardian to minor wards at the time of her purchase (as we must presume), and she cannot be permitted thus to destroy the estate of her infant wards. It is to be borne in mind, that any ratification and assent to this purchase of the tax-title by the co-tenants was made about twelve years after the purchase, and after the rendition of the judgments, above referred to, against R. W. and C. L. Hyatt.
3. While the bill, on its face, charged a sale of the whole of lot 131 by appellee to appellants, the exhibit filed'with the bill, the conveyance itself, disclosed that only the portion of lot 131 was sold and conveyed which the answer of appellee avers was sold and conveyed. The complainants were entitled to any less relief than the particular relief prayed, if the evidence justified.
The better practice is to set the cause down for hearing to the end that the legal principles involved may be first settled by the court. When this has been done, and favorably to complainant, but the court for want of evidence, or because arithmetical or other calculations, necessary to stating an account, are required before the court can say precisely what relief shall be granted, then the court should, whether asked or not, refer the matter to a com
On the case as presented, the complainants were entitled to some relief, and the unconditional dismissal of their bill was error.
Reserved and remanded.
