Pankey v. Howard

1. Partition Statute — art. 73, p. 551, Rey. Code 1857. —Under this statute, the chancery court cannot decree a sale of any land, except such as the parties have a joint interest in, in joint tenancy, tenancy in common or coparcenary. Unless the several parties to the suit would be entitled to partition of the land, there can be no sale for distribution of the proceeds among them.

Appeal from the chancery court of Holmes county. Henry, J. The decree rendered in this cause is erroneous, on account of the manner in which the process was executed on the defendants. In the case of Robertson v. Johnson, 40 Miss, page 500, the decree was held erroneous because the process was returned “ executed,” and such is the return in this case. By reference to the record, it will appear that no notice was- served on the defendants of the taking ol the depositions ; this is also error,.because a decree cannot be taken against infants, especially, without some proof of the allegations in the bill, and depositions without notice are not proof. Two tracts of land are given in the bill; one belonged to the heirs of W. Stanfill, and the other to the heirs of Mary and Nathan H. Edwards, and the heirs of both parties were minors. The Edwards’ heirs owned one-fourth interest in the Stanfill land, through their mother, but the Stanfill heirs, as such, had no interest in the Edwards’ land, and the chancery court had no jurisdiction of the Edwards’ land for the purpose of a sale to benefit the heirs of Stanfill in a sale of their land. A court of appeals is as much the guardian of the rights of minors as a court of original jurisdiction; and, whenever it appears that the rights of minors have not been properly protected, should protect them by a reversal of the decree, in which their rights have not been properly protected. The heirs of Edwards had an interest of only 60 acres in the Stanfill land, but had of their own land about 500 acres. Now, is it right to sell a large tract of land which belongs exclusively to three minors, that a good sale may be made of 240 acres, in which said three minors have only 60 acres? I cannot think this court will permit such sales to be enforced under such proceedings as were had in this case. The “ Edwards’ heirs ” (of whom the plaintiff here were) owned 500 acres of land exclusively. They had an undivided one-fourth interest in 240 acres of other land contiguous to the 500 acres. Martha Howard owned an undivided one-fourth interest in the 240 acres. A minor named Stanfill owned one-fourth, and the children of Edny Beall, deceased, the remaining one-fourth interest in the 240 acres. Isaiah Howard, husband of Martha Howard, was guardian of the “ Edwards’ heirs.” James Wallace was guardian of the minor, “ Stanfill.” The bill was exhibited by Mrs. Howard and husband, the latter describing himself as guardian of the “Edwards’ heirs,” and James Walla’ce, guardian of the minor, “ Stanfill.” The “ Edwards Heirs,” the minor, “ Stanfill,” the children of Edny Beall, deceased, and others, were made defendants. The bill stated that the two tracts are incapable of advantageous division, ■ and that the interests of the parties will be promoted by sale and division of the proceeds, which is prayed. The defendants were minors. A final decree was rendered, as prayed by the bill. This decree must be reversed, because of the defective service of process. But the attention of the court is asked to the substantial matters of the case, in order that the court below may be advised how to dispose of it. This bill was brought under art. 73, p. 551, Rev. Code of 1857, as it is supposed. It is manifest that it is not maintained by that law, for the parties were not joint tenants, tenants in common, or coparceners of the land sought to be sold. They were jointly interested in the 240 acres, They had no common interest in the 500 acres. That tract was owned exclusively by the “ Edwards’ heirs.” It was improper to blend the two separate and distinct matters. This objection goes to the foundation of the suit, and as the defendants to the bill were minors, although the bill was not demurred to, this court will interpose for the protection of the infants. It is apparent that Mrs. Howard, who owned one-fourth interest in the 240 acres, desired to sell her interest, and in order to effect her object advantageously, her husband, who was guardian of the “Edwards’ heirs,” owners of one-fourth interest in the 240 acres, and Wallace, (who was guardian of the minor, Stanfill, owner of one-fourth in the 240 acres,) joined with her in a bill to sell not only the 240 acres in which Mrs. Howard, “ Edwards’ heirs,” the minor, Stanfill, and children of Edny Beall, had a common interest, but the 500 acres, the exclusive property of the “ Edwards’ heirs.” Under art. 73, p. 551, Code 1857, the court could decree sale of the 240 acres on the application' of a party in interest. But the court could not decree sale of land in which the party filing the bill had no interest. It is observable that none of the parties filing this bill had any interest in the 500 acres. The parties who filed the bill are Martha Howard and her husband, and two guardians. Martha Howard had no claim on the 500 acres, and it is very certain the guardians, as such, had no interest entitling them to a decree for sale for division, and yet, on their application, the 500 acres of land belonging exclusively to the “Edwards’ heirs” was ordered to be sold. A glaring error, for which the decree would be reversed, if the process had been duly served.