Pearson v. Caldwell , 93 Miss. 637 ( 1908 )

Calhoon, J.,

delivered the opinion of the court.

The death of T. F. Caldwell cast the title to his lands on his heirs at law, who brought ejectment for a certain lot “in the rear of what was known as the Caldwell storehouses in the town of Batesville.” Pending that action of ejectment, this suit in equity was filed by Pearson for an injunction against its prosecution. On the hearing, the bill and an amended bill were dismissed, and the injunction dissolved.

Pearson claims an equitable title through a sale to pay debts made by T. F. Caldwell’s administrator. At that sale one Moore bought, or thought he bought, the land here litigated about. On the death of Moore there was a partition sale of his lands, at which sale Pearson bought the lot. Pearson sets up in his bill that there was a mistake in the petition and decree for sale to pay debts by the administrator of T. F. Caldwell. He further sets up that the appellees who are plaintiffs in the ejectment suit, were estopped to deny his title derived from that sale because they accepted the purchase money, paid. We iiiay say here that the acceptance by the heirs of T. F. Caldwell of the purchase money was simply that their pro raid, was by that much proportionately increased in the distribution of the estate, and that, under the statute, (Code 1892, § 1907, 'Code 1906, § 2082) this might be set up in the ejectment suit, and a lien on the land for that and improvements, if any, could be fixed in that action.

The main feature, however, of the bill before us, is to correct what is alleged to be a mistake in the proceedings of sale, and have the land correctly described and the title fixed in Pearson. This prayer is based on Code 1892, § 1897, which is brought forward identically in Code 1906, § 2072:

“2072 (1898). Mistake in Description of Land Corrected. Tf any mistake shall be made in the description of any land of a decedent sold or leased, either in the petition, decree or other part of the proceedings, the same may be corrected by the court on petition of the purchaser or his assigns.”

From our view, the position of counsel urging this Correction, while put with great cogency, is not sound. As a matter of fact the land now in controversy was not described in the petition of the administrator for sale nor in the final decree confirming the sale; and we do not see how we can amend, because, as .averred in the bill, the lot sold was thought to embrace it. We find that, where land is sold which is not embraced in the petition for sale, nor in the decree of confirmation, this cannot be called a mistake in the description, such as is referred to in the section of the Code cited. And this is not cured by the mere idea of the administrator and his attorneys that it was embraced by any particular lot which was the property of the decedent and was in fact sold. We think that a correctible mistake under the statute must be pointed to in some Way in the petition nr decree, and cannot be supplied by the general belief.

Affirmed.