Hilbun v. Hilbun

98 So. 593, 134 Miss. 235, 1924 Miss. LEXIS 251

• Court: Mississippi Supreme Court
• Decided: January 21, 1924
• Docket: No. 23745
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

The appellees by their bill in the chancery court of Jones county sought to cancel a deed through which appellant claimed title to one hundred and twenty acres of land so far as it stood in the way of the claim of each of appellees to one-ninth undivided interest in said land. Appellees charged in their bill that said deed was procured by fraud, and also that the grantor therein was mentally incapable of making the deed at the time of .its execution, and therefore said deed should be canceled. Appellees averred further in their bill that, if said deed were set aside and canceled, as it should be, each of them would own a one-ninth undivided interest in said land, aggregating four-ninths, and appellant the other five-ninths undivided interest therein, and that a partition in kind of said land could not be had because it was not susceptible of such a partition. Appellant answered, denying the material allegations of appellees’ bill, including the charge that the land involved was not susceptible of being partited in kind, and made his answer a cross-bill, by which he sought to have the said deed through which he claimed title to said land reformed so as to make it show that said land was in township 8, instead of township 9, as was erroneously recited in said deed. There was a trial on bill, answer, and cross-bill, and answer to cross-bill and proof, resulting in a final decree in favor of appellees, except as to one of them, whom the court found had no interest in the land, and denying appellant the relief prayed for in his cross-hill, from which decree appellant prosecutes this appeal.

Appellant’s first contention is that great preponderance of the evidence is against the finding of the chancellor on the issue of fact, whether the deed involved should be cancelled and set aside for the reasons stated in the bill, and therefore it is the duty of this court to overturn the finding of the chancellor and render a decree in appellant’s favor establishing and reforming said deed as prayed for in his cross-bill. We have given the evidence bearing on this question a great deal of care and consideration. We are of opinion that this is not a case where the finding of the chancellor is against the overwhelming weight of the evidence. On the contrary, there is ample evidence to support such finding.

Appellant urges in the next place that the decree appealed from must be reversed because without any evidence upon which to found it the chancellor decreed that the land involved was not susceptible of being partited in kind, and ordered a sale and a division of the proceeds thereof between appellant and appellees according to their respective interest. Appellant expressly denied in his answer the charge in appellees ’ bill that the land was not susceptible'of partition in kind. There was no evidence whatever introduced on this issue. The chancellor without any evidence simply decreed a sale and a division of the proceeds thereof. In so decreeing the court ignored the well-established principle that the law looks with favor upon the partition of land in kind and with disfavor upon its sale for a division of the proceeds thereof, and that a sale will not be ordered unless the land is not susceptible of partition in kind and a sale will better promote the interest of all parties concerned. That the court will not divest the title of a cotenant in land over his objection in order to make a sale without a showing that an equitable and just partition in kind cannot be made, and a sale will better promote the interest of tbe co-tenants. Shorter v. Lesser, 98 Miss. 706, 54 So. 155. It follows from these views that the decree of the chancellor disposing of the first proposition should be affirmed, while his decision as to the latter must be reversed.

Affirmed in part and reversed and remanded in part.