Alsobrook v. Eggleston

1. Decree eor Partition. Conclusiveness as to title. Parties amd privies. A decree for the sale of land for partition, which fixes the interests of the parties, is conclusive as to such interests, as between the parties and their privies, although the decree is never executed by a valid sale of the land. 2. Judicial Sale. Failure by commissioner to follow decree. Case. Where a decree, rendered in 1802, required a sale of lands upon a credit of six months, with bond and security for the purchase-price, but the commissioner sold for cash, accepting in payment Confederate money, which he withheld with his report until after the close of the war, the sale was invalid, and the purchaser, being bound to take notice of the commissioner’s disregard of the decree, acquired no title. 3. Same. Confirmation in pais. Evidence not sufficient. In such case the purchaser, without waiting for confirmation, and without recording' the deed, went into possession of the land, which was uncultivated, and cleared a small part of it. The report of sale was excepted to by defendants, and no further step was taken in the case. In 1886 such purchaser also bought a half-interest of the complainant, and received a deed, which he recorded. It was not shown that, after the exceptions to the report, he claimed any interest under the decree. Held, the fr cts do not show a confirmation of the sale by the act of the parties. 4. Commissioner’s Sale. Exceptions to report. Abandonment. Presumption. No presumption in favor of such purchaser’s title arose from the fact that exceptions were filed to the report of sale, and that no further step was taken in the case. The inference is that the sale, rather than the exceptions was abandoned. 5. Co-tenancy. Ouster. Adverse possession. Notice to co-tenant. The purchase of the half-interest of the complainants in said, suit, being-made after exceptions to the report of sale were filed, will be construed as a recognition of the title of defendants to the other half-interest, and the possession of such purchaser, being thereafter lawful as against the defendants, will not be adverse until notice to them of his hostile claim; nor will a previous entry and deadening of the timber on a small part of the land, and the erection of two cabins thereon, be construed as an ouster, this being merely in expectation of a confirmation of the sale.

From the chancery court of Tallahatchie county. Hon. W. it. Trigg, Chancellor. The land, for a partition of which the bill in this case is filed, was originally owned by Armistead Payne and W. B. Alsobrook, the ancestor of complainant. They purchased jointly, but took the title in the name of Payne. In 1862, after the death of Alsobrook, Payne filed a bill against the heirs of Alsobrook, who were then minors, in which he stated the true condition of the title, and prayed for a sale of the land for partition. The heirs of Alsobrook appeared by a guardian ad litem, and a decree was rendered for a sale of the land. By the decree one Davidson was appointed commissioner, and was directed to sell the land upon a credit of six months, taking the bond of the purchaser therefor, with sufficient security. He was further directed, out of the proceeds of the sale, to pay the costs, and report the balance to the court for distribution. The commissioner proceeded the same year to make the sale, and "William C. Eggleston became the purchaser. But the commissioner, instead of taking the note of Eggleston, payable in six months, with good security, accepted the entire amount of his bid in Confederate money, and executed to Eggleston a deed. Eggleston at once entered upon the land, which was uncultivated, and deadened the trees upon about one hundred acres, and, in 1863, built two cabins thereon, which he rented. There is evidence that he claimed the land continuously after that time, and he regularly paid the taxes, but the commissioner’s deed to himself was not recorded. The commissioner made no report of the sale until 1866, when he filed a report, stating the action he had taken, and brought into court the Confederate money which he had accepted in payment for the land. Exceptions to said report were promptly filed in behalf of the defendants, and, so far as the record discloses, no further step was ever taken in that partition suit. In 1866 Eggleston purchased the half-interest of Payne in the land, and received from him a deed, which he placed upon record. It is not shown that the heirs of Alsobrook had any knowledge that Eggleston claimed the entire land adversely to them, but it is shown that he continued to pay taxes on all of it, and in 1880 he sold forty acres of the land, which he had cleared, to one Wade. The bill in this case was filed October 12,1889, by the heirs of W. B. Alsobrook against the heirs of Eggleston, seeking a,partition of the lands. The answer denied the title of complainants, and asserted exclusive ownership in the defendants by virtue of the above-mentioned commissioner’s deed and long-continued adverse possession thereunder. The answer also set up the purchase, in 1886 and 1887, of tax-titles to the land, but, since the court finds that Eggleston was a co-tenant with the heirs of Alsobrook, it follows that Eggleston could not avail of the tax-titles. Upon the foregoing facts, deduced from the pleadings and the evidence, the court decreed in favor of the defendants, and dismissed the bill, and from this decree the complainants have appealed. Eggleston, by his purchase in 1866 of the half-interest of Payne, became a tenant in common with the complainants. His possession after that was not adverse. The sale by Davidson, the commissioner, was void, and it is evident that Eggleston so regarded it. This is apparent from his own conduct, for lie never placed the deed upon record, but, on the contrary, purchased the half-interest of Payne, the complainant in that partition proceeding. He is estopped to deny the title of complainants. 'There was never any ouster by Eggleston of the complainant. The temporary occupancy of the land after 'his purchase was not adverse, and did not continue for ten years. The exceptions to the report of sale were abandoned. More than twenty years afterwards the same parties- filed an original bill for partition. After such a time, confirmation of sale will be presumed. Johnson v. Cooper, 56 Miss., 608; Redus v. Hayden, 43 Miss., 613Gowan v. Jones, 10 Smed. & M., 164. Eggleston entered under the.commissioner’s deed in 1862, and continuously held, claiming title, thereafter. The deed, if void, was color of title. The acceptance of a deed from Payne by Eggleston did not operate to change his relation to the complainants. That transaction could not establish a co-tenancy between complainants and Eggleston. The latter had taken possession long before this under his deed, and was claiming the- entirety. I submit that the sale by the commissioner was not void, even if lapse of time has not confirmed it.