Cooper v. Fox , 67 Miss. 237 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The complainants and defendants are heirs-at-law of Mrs. Anna Prestidge, who died intestate, in December, 1873. The petition is filed for partition of certain lands, which it is alleged descended to the parties by the death of Mrs. Prestidge. The defendant, Mrs. Cooper, is the daughter, and the defendants, William Prestidge and Mrs. More, are the grandchildren of Mrs. Anna Prestidge, the two latter being children of John Prestidge, deceased, who was a son of Anna.

The land described in the petition consists of a single tract, but it is intersected by Fair river, about two-thirds being upon the north, and one-third on the south of said river. Mrs. More failed to answer the petitition and no pro confesso was taken against her. William Prestidge and Mrs. Cooper filed separate answers, but the same facts are set up in each. Shortly stated, the facts relied on by them, are that Mrs. Anna Prestidge had no title to any of the land at the time of her death, the history of her claim to the land and of her disposition of it being this : in the year 1854, the land was sold by John Dickerson, administrator of the former owner, and at the sale Mrs. Anna Prestidge became the purchaser, at the price of about two thousand dollars, to be thereafter paid; after the purchase by her, she discovered that she would be unable to pay the purchase price, and, at her instance, William Cooper (the husband of the defendant, Mrs. Cooper) and John Prestidge agreed to assume the payment of the purchase price; in consideration of which they were to become owners of the land. No deed had been made by the administrator to Mrs. Prestidge, but under the contract between the parties the administrator was to make the conveyance directly to John Prestidge and William Cooper. Under this agreement Prestidge and Cooper entered upon the land and made parol partition thereof, Prestidge taking all north of Fair river, and Cooper all south of the river. Cooper and Prestidge paid the purchase price, and since their entry upon the land have been in adverse possession thereof, each claiming the portion allotted to him by parol partition, and though no deed was ever made to them, the defendants claim that the title was vested in the said John Prestidge and William Cooper by adverse possession long before the death of Mrs. Anna Prestidge, who during her life never set up any claim to any part of the land after her contract with these parties. The defendant, Prestidge, disclaimed any claim or interest in the lands south of Fair river, but claimed to be the sole owner of all north of the river, he having received a conveyance from Mrs. More (the only other heir-at-law of John Prestidge), of her interest in the same. Mrs. Cooper denied that she or complainants had any interest in any of the lands, and denies that she is now or ever has been in the possession of any part thereof, save as the wife of William Cooper, living with him on his own land.

The evidence leaves it somewhat in doubt whether Mrs. Anna Prestidge did or did not receive a conveyance from the administrator, Dickerson. It is immaterial how this was. All other facts set up by the answers are as satisfactorily and clearly proved as it is possible to do where there are conflicting interests and the consequent conflicts of testimony. The complainants were themselves witnesses in their own behalf, and while they deny the extent of the contract between Mrs. Anna Prestidge and John Prestidge and Cooper, they yet admit that there was some agreement by which these parties were to go on the land and pay the purchase-money due on it. They seek, however, to draw the unnatural inference that the land when paid for was to be the property of Mrs. Anna Prestidge. In this they are contradicted by a number of witnesses who clearly and unquestionably support the claim of the defendants. The chancellor, impressed with the conviction that truth was with the defendants, denied the right of partition as to the lands claimed by the defendant Prestidge, thus recognizing his title by prescription, and from the decree as to these lands the petitioners do not appeal. But as to the lands, title to which was asserted to be in William Cooper, on the ground, as we are informed by the briefs of counsel, that Mrs. Cooper could not set up an outstanding title, partition was secured.

Counsel for appellees relies upon a line of authorities by which it is held, and rightly, that where one tenant in common receives possession of the common estate by reason of the common title, he may not while in possession set up an outstanding title as against the co-tenant.

In all the cases relied upon, except Burleson v. Burleson, 28 Texas 383, the decisions are put upon the ground of estoppel against the party in possession to set up the outstanding title, because he had entered under the common title. In Burleson v. Burleson the decision proceeds upon the reason that under the law of Texas all persons havings an interest in the subject-matter may be made parties defendant to the partition suit. Such is not the practice in this state, for with us only those having an interest in the result sought, the partition, can be made parties. Nugent & McWillie v. Powell et al. 63 Miss. 99.

We are somewhat surprised by the decree of the court below, in view of the fact that it correctly appreciated the law and permitted William Prestidge, who was actually in possession of a part of the land, to prove want of title in the petitioners as to the land he held, by proving title in his father, and now held by himself. This was correct, for the reason that possession was taken against and not in subserviency to the claim of Mrs. Anna Prestidge, the common ancestor of petitioners and defendants. We fail to perceive why a different principle was applied, as against Mrs. Cooper, who not only never entered under the common title, but, in fact, was never in possession of the land at all. If petitioners have no title, they have no standing in court, and their want of title is as fatal to them, if the true title and possession is in a stranger, as it would be if it were in Mrs. Cooper. There must be a res for the proceedings in partition to attach to, and that res is a common estate. Where the defendants are prevented by tbe doctrine of estoppel from denying the common estate, it is just as .though it was proved to exist, but where, as here, there is no element of estoppel, and the defendant clearly shows that there is no title in the petitioners, there is nothing to which the jurisdiction of the court can attach. Ingram v. War, 5 S. & M. 746; Shearer v. Winston, 33 Miss. 149; Mattair v. Payne, 15 Florida, 682.

Decree reversed and case dismissed.