COMAN v. JOURDAN

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Docket Number

No. 32729.

Attorney(S)

Brewer Hewitt, of Jackson, and W.B. Ellis, of Iuka, for appellant. We are aware of the doctrine that this court is reluctant to reverse a chancellor on a finding of fact, but also realize that this court has no hesitancy in reversing where the finding is manifestly wrong. With deference, we submit that the chancellor was unwarranted in directing that the property be sold for partition on such a flimsy, vague and indefinite showing of ownership as is the case here. Mallory v. Walton, 119 Miss. 396, 81 So. 113; Millsaps v. Shotwell, 76 Miss. 923, 25 So. 359; Shorter v. Lesser, 98 Miss. 706, 54 So. 155. There is manifest error, both of law and fact, in the finding that D.O. Jourdan was a bona fide purchaser for value without notice. That possession is notice to the world of all rights and equities of the occupant or of him under whom the occupant holds is familiar learning. Dixon v. Doe, 1 S. M. 70; Jones v. Loggins, 37 Miss. 546; Bell v. Flaherty, 45 Miss. 694; Taylor v. Lowenstein, 50 Miss. 278; Bratton v. Rogers, 62 Miss. 281; Kirby v. Bank of Carrollton, 59 So. 10; Commission Co. v. Millstead, 92 Miss. 837; 23 Cyc. 854; 17 Am. Eng. Encyc. of Law (2 Ed.) 776; Ann. Code 1892, sec. 756; Ridgeway, Budd Co.'s Appeal, 15 Pa. 177, 53 Am. Dec. 586; Davis v. Steeps, 87 Wis. 472, 58 N.W. 769, 23 L.R.A. 818, 41 A.S.R. 51. With confidence we assert that this cause should be reversed for the following reasons: 1. The proof offered to show ownership in complainant was slight, vague, flimsy and indefinite. 2. With burden of proof on the complainant to show that the property is not subject to division in kind and that a sale for partition would be for the best interest of all concerned and with the allegations in the bill on this proposition specifically denied, no showing whatsoever was made or attempted to be made on this point. 3. Despite the fact that Miss Innis Alexander was served with process and did not answer and that J.J. Coman answered that he owned the properay in fee simple and testified that he had deeds from all the heirs save J.W. Coman, with whom he had an executed contract of sale, the chancellor found that Miss Innis Alexander owned a five-twentieths undivided interest. 4. The complainant was clearly not a bona fide purchaser for value without notice and hence, had no interest in the property and no ground on which to base his prayer for sale for partition. Clark Clark, of Iuka, for appellee. It will be noted from this record that appellant is relying on the possession of his tenant as notice to appellee that he was the owner of the entire fee. Miss Innis Alexander, one of the cotenants, occupied these premises and has all her life, then we say under the law that even if J.J. Coman, the appellant, had a tenant occupying these premises that that is not the character of possession which the law lays down as to notice. 2 Devlin on Real Estate (2 Ed.), page 1392, sec. 769. In order for possession to be notice that possession must be exclusive. It was no such in this case because there was another occupancy by a tenant in common, and if appellant's possession was notice that he had the title to the property, then the possession of Miss Innis Alexander another cotenant would also be notice that she had the title to he property. Counsel says in his brief that there was no proof in the record to show the property could not be divided in kind. In answer to this we say that there was no denial of this fact by appellant. He claimed that he owned the entire fee and, therefore, no necessity for a partition, and if not denied specifically it is an admission that it cannot be divided in kind. Argued orally by Wm. H. Hewitt, for appellant, and by T.A. Clark, for appellee.

Judges

Cook, J., delivered the opinion of the court.

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COMAN v. JOURDAN.

1. PARTITION.

In cotenant's suit for partition, decree fixing respective interests of cotenants and ordering a sale for division of proceeds where answer of one of defendant cotenants denied plaintiff's allegation that land could not be divided in kind and that it would be to best interest of owners to sell it, and there was no evidence bearing on question of whether land involved was susceptible of partition in kind held erroneous.

2. APPEAL AND ERROR.

Where both pleadings and evidence in partition suit were confusing as to issues attempted to be presented other than issue as to whether property should be sold rather than be divided in kind on which decree of trial court was reversed and evidence as to relationship and interest in land of some of cotenants and circumstances under which possession was taken and held by them was not fully developed, cause should be reversed and remanded generally so that all issues might be clarified on a retrial.

Cook, J., delivered the opinion of the court.

This suit was filed by D.O. Jourdan against the other alleged tenants in common of a certain block of land, seeking a partition of said land. The bill of complaint alleged that on account of the number of interests in said land it could not be divided in kind, and that consequently a sale thereof and division of the proceeds among the owners would be for their best interest. The answer of J.J. Coman, one of the cotenants, specifically denied that the land could not be divided in kind, and that it would be to the best interest of the owners to sell the land for division of the proceeds. The court entered a decree fixing the respective interests of the several alleged cotenants, and ordering a sale of the property for division of the proceeds.

There is no evidence whatever bearing upon the question of whether or not the land involved is susceptible of partition in kind, and for this reason the decree of the court below must be reversed and the cause remanded. Hilbun v. Hilbun, 134 Miss. 235, 98 So. 593; Shorter v. Lesser, 98 Miss. 706, 54 So. 155; Smith v. Stansel, 93 Miss. 69, 46 So. 538. And in view of the fact that the pleadings, as well as the evidence, are confusing as to the remaining issues attempted to be presented, and the evidence as to the relationship and interest in the land of some of the cotenants, and the circumstances under which possession was taken and held by them, is not fully developed, we have reached the conclusion that the cause should be reversed and remanded generally so that all issues may be clarified upon a retrial of the cause.

Reversed and remanded.

COMAN v. JOURDAN.

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