Cox v. Kyle

1. TbkaNts in Common. Sale for division. Practice. In a proceeding- to sell lands for division of proceeds among tenants in common, it is error to award the whole of such proceeds to the complainants on the ground of an indebtedness of defendants to them not averred in their bill nor shown by evidence. 2. Same, It is error to decree a sale of land for division of proceeds among tenants in common when defendants’ answer denies that the land is not susceptible of division without injury to the interests involved, and that it would best serve such interests for the same to be sold, and there is no evidence on the subject. 3. Same. StaPute strictly ■pursued. Code 1892, § 3100. The statute providing for the sale of land for division of proceeds among- tenants in common is an innovation on the common law, and must be strictly pursued. 4. Same. Absence of proof. Oral evidence. Recital in decree. Code 1893, $ 1764. A recital of the taking of oral proof in a decree for the sale of land for division of proceeds among tenants in common, does not supply the want of proof in the record to support the decree when oral evidence has not been made admissible by notice filed nor by agreement of the parties under $ 1764, code 1892.

FROM the chancery court of Tunica county. HoN. A. H. LoNGINO, Chancellor. The case is sufficiently stated in the opinion of the court. 1. Notwithstanding the denials of defendant’s answer that a sale was necessary, the court proceeded to decree a sale of the lands, upon some testimony that does not appear in the record. Presumably the court, by its reference in the decree to oral testimony, meant that testimony of that character was taken as to the question of sale or partition in kind. But it is clear that §§ 1763, 1764, 1766, code 1892, do not authorize the taking of oral testimony in cases of this kind. Besides, there is no proof in the record of any of the statutory requirements of a valid sale. Tindall v. Tindall, 3 So. Rep., 581. It is well settled that, as between partition and sale of common property, the courts prefer a partition. Pomeroy on Eq. Jur. (2d ed.), 1390. There was no evidence to show that sale was necessary, and the averments of the bill were met by the denials of the answer. 2. The commissioner did not sell for cash, and his report of sale should not have been confirmed. He allowed the complainant to credit his bid on a judgment he had against Julius and Frank Cox, his co-tenants. Blythe v. Horne, 17 So. Rep., 4, and cases cited. 1. Section 1764, code 1892, provides that in any chancery case the parties may agree in writing to try the cause on oral testimony, and this court, in the absence of any showing in the record to the contrary, should presume that this proceeding was so tried. The courts indulge, to a great extent, the presumption in favor of the .validity of judgments and decrees. Cummings v. Johnson, 65 Miss., 342; Covel v. Smith, 68 II., 296; Byrd's ease, 1 How. (Miss.), 163; George’s Dig., 378; Smith v. Berry, 1 Smed. & M., 321; Wells v. Smith, 44 Miss., 296; Smith v. Hurd, 8 Smed. & M., 682; Leath v. Wright, 2 How. (Miss.), 774; Balfour v. Mitchell, 12 Smed. & M., 629; Henderson v. Guyot, 6 Smed. & M., 209; Stevens v. Mangum, 27 Miss., 431; Noe v. Benianl, 7 Smed. & M., 319; Gasón v. Gasón, 31 Miss., 578; Lee v. Bennett, II)., 119; Duncan v. McNeill, 11)., 704. 2. There is nothing in appellant’s contention that no money was paid at the commissioner’s sale. The decree provided for a sale in cash, and the commissioner reported that he followed its terms. The court below understood the commissioner’s report as to the amount of complainant’s bid being ci’edited on the j udgment against the defendants, Frank and J ulius Cox, as a credit, and approved it. If he had not paid the money, complainant would not have been given credit.