Sweatman v. Dean

Cox, J.,

delivered the opinion of the court.

The original bill in. this cause avers that complainants and certain defendants therein named — to wit, B. E. Dean, J. A. Dean, Mrs. Mary Harper, B. E. Harper, Mrs. Kizzie Johnson, Carrie Dean, and Ida Dean — are tenants in common, with right of possession, of the entire interest in certain lands described in the bill, of which partition is sought; that D. W. Sweatman, Elizabeth E. West, Oliver Larkin, and G-eorgeanna Turner claim some interest in said lands under and through their co-defendants, and that they are joined as parties defendant to the bill so that they may propound and indicate their claims, if any they have, to said lands. Oliver Larkin and Georgeanna Turner answer, disclaiming all title to the land and interest in the controversy. D. W. Sweatman, B. E. Dean, Mrs. Mary Harper, and B. F. Harper answer, admitting the relationship *645 of tbe complainants and certain of defendants to one H. H. Dean, deceased, former owner of said lands, through which relationship complainants claim that themselves and certain of the defendants are tenants in common of the entire interest in said lands, but deny that complainants have any interest whatever in the said lands. The answer avers, on the contrary, that title to the said lands was divested out of complainants and other co-tenants by a sale by a commissioner appointed by the chancery court of Lauderdale county in the case of B. F. Dean et al. v. W. D. Dean (No. 1367), to which reference is ¡made, and that defendant D. W. Sweatman purchased said land at a sale made by W. 0. Moore, commissioner of said court, and that he paid therefor the sum of $4.00, etc. The final- decree of the court in the said cause No. 1367 and the deed of the com¡missioner are made exhibits to the answer. The cause coming on for hearing on bill, answers, exhibits, and proofs (as recited in the decree), the court found the complainants and defendants, Jasper W. Dean, W. H. Dean, Mrs. Clarissa Thomas, B. F. Dean, J. A. Dean, Mrs. Mary Harper, Mrs. Kizzie Johnson, B. F. Harper, Ida Dean, and Carrie Dean, are the owners in common in fee simple of the lands,'ascertained and fixed their respective interests, and ordered partition by commissioners. Hpon the coming in of the report of the commissioners showing partition and allotment of sa¿d lands pursuant to decree, D. W. Sweatmah, one of the defendants below, and appellant here, excepted to said report upon the ground “that the lands in question are not the property of the heirs of H. H. Dean, among whom said commissioners have attempted to divide them, but are the property of your exceptor by purchase-at a sale made thereof on the first Monday of October, 1894, at the public vendue by a commissioner of this honorable court, pursuant to a decree therefor made and entered on the minutes thereof on the 24th day of May, 1894, in certain partition pro* ceedings styled ‘B. F. Dean et al. v. W. D. Dean et al. (No. 1367),’ the parties thereto being the same as those herein *646 amongst whom division in kind is attempted to be madeand that the purchase money had been paid, distribution made, etc. Reference is made to bill for partition in No. 13 6 Y, decree of sale thereon, report of sale, and decree of confirmation; all of which are made exhibits. B. F. Harper joined in the exceptions. Upon the hearing of the exceptions the court sustained an objection to the evidence offered by the exceptors — to wit: (1) Bill for partition in cause No. 1367, styled “B. F. Dean et al. v. W. D. Dean et al.;" (2) decree of sale in said cause; (3) report of sale; (4) decree of confirmation; (5) process issued in said cause. The court excluded the evidence offered, and, being of opinion that the exceptions were not well taken, overruled the same, approved and confirmed the report of the commissioners, and set off the lands in severalty according to the report; whereupon exceptors Sweatman and Harper prosecuted their appeal to this court.

We are not able to determine precisely what evidence the court h'ad before it when it rendered the original decree for partition in case at bar, and we do not deem it specially important that we should know. Nor do we deem it necessary to determine upon whom was the burden of proof upon the hearing of the original bill and answer. It is clear that all that was, necessary of the record in cause No-. 136Y — -to wit, the bill, the original decree, the report and decree of confirmation, and process issued in said cause — were before the court on the hearing of the exceptions; and these conclusively showed title in exceptor Sweatman as against any collateral attack. This case is not within the principle of Norris v. Callahan, 59 Miss., 140 . The decree in that case was for sale of lands to pay debts of testator. It was a final decree. It could not be opened by exceptions to report of sale. A decree directing partition of land is interlocutory. Gillylen v. Martin, 73 Miss., 701 ( 19 South. Rep., 482 ). The interlocutory orders and decrees made by the court in a suit for partition are under the absolute control of the court, and at any time before the final decision may bel *647 modified and reversed. 15 Ency. Pl. & Pr., 810. The decrees of sale and confirmation in case No. 1367 cannot be collaterally assailed. The decree of sale in that cause recites “that all parties interested in said lands are made parties to this proceeding by proper process duly served.” Such a recital in a decree was, in Cocks v. Simmons, 57 Miss., 183 , in ahi opinion by George, C. J., held conclusive of the jurisdiction of the court. To. that ease the return on process showed no service on some of the defendants. In the instant case the record shows legal service as to all, but that some of the defendants were cited to the second, instead 'of the first, Monday of the term. The decree sought to be impeached was rendered at a much later date than the return-day, and during the fourth week of the term. At the most, this was a miere irregularity, amendable if attention had been called to it, and, if not amended, presenting only the question of error or no error on direct appeal from the decree rendered by the court, but not affecting its validity in a collateral attack. Kelly v. Harrison, 69 Miss., 856 ( 12 South. Rep., 261 ); Kaufman v. Sampson, 9 Ind., 520 ; Rigsbee v. Bowler, 17 Ind., 167 .

Reversed and remanded.