Fairchild v. Harbison , 120 Miss. 236 ( 1919 )

Ethridge, J.,

delivered the opinion of the court.

The appellee Sarah W. Harbinson filed a hill in chancery court to foreclose a mortgage upon certain lands, which mortgage was-given by. Chas. H. Fairchild. The prayer for relief was that a lien he fixed against 'the property, a commissioner .appointed to make sale to pay the indebtedness and attorney’s fees, and for the conveyance of such sale, • and for general relief. Ap-pellees Joe Banks, Yirse Banks,. Eugene Banks, Sam Banks, and Tom Banks, by their next friend, Susan Banks, and the wife and children of ,Chas. Fairchild, intervene as parties defendant, setting up that ' they were the children and grandchildren of Chas H. Fair-child, Sr., and the owners of an undivided inalienable and at present an indivisible interest in the lands mentioned, under a will made by Chas. H. Fairchild, Sr., which contained the following clause with® reference to land: ■

“My real estate situated in Washington county and Sharkey county o"f the state of Mississippi that I now have or may acquire at any time hereafter I bequeath and demise unto my well beloved son Chas. Henry Fairchild and my well beloved daughter Susan Banks and to their heirs, the same to be held, used, and occupied and enjoyed in common tangibly and as the profits and revenue therefrom and to so remain in common until my youngest grandchild now living or, that may come Into existence hereafter shall have reached the years of twenty-one (2Í).”

The cross-bill set up that under this clause the devise to Chas. H. Fairchild and Susan Banks was only a life estate, and that the grandchildren of the testator have a vested interest in the land until the youngest shall become twenty-one years of age, and that neither Fairchild nor 'Susan Banks can execute a valid deed of trust or conveyance during said time, and the cross-bill prayed for an injunction against the sale. The chancellor decreed for the complainant and dismissed the cross-hill and decreed that Chas. H. Fairchild' is the owner in fee of an undivided one-half interest m the land, and that the deed of trust is valid, and that the other appellees “have no interest in the undivided one-half interest of the said Chas. H. Fairchild,” etc. and directed sale of said land. From which judgment this appeal is prosecuted. „ ,

Two appeals involving ’ this will have been affirmed by this court without written opinions in Moore v. Fairchild, 60 So. 15, and Banks v. Peak, affirmed January 13, 1919, 80 So. 346. In the first - case several other reasons were set up why execution sale was not good, and we are unable to determine which one - of the grounds of invalidity the court predicated its affirmance on. In the last case was another branch wherein the appellee Susan Banks executed similar papers to this, and which the court held good as conveyances and ordered foreclosure. In neither of these cases, nor in the present case, is it necessary to decide what posses-sory rights the appellees may have in the cases, nor whether the grantee in the trustee’s sale could obtain exclusive possession of such one-half undivided interest, or whether he could obtain possession at all until the youngest grandchild becomes twenty-one years of age, and consequently we do not decide these ques-' tiohs. We are of the opinion, however, that Fairchild could execute a deed of trust on his interest, and that he had a fee-simple title subject only to the limitation, if any, as to the úse and joint possession, etc., and that the chancellor was right in directing the sale of the lands. The chancellor should not have adjudged on this record that the appellees have no rights in the said lands, as that question is not properly before the court in this case. Judgment is accordingly modified so as to eliminate this recital, and judgment will be entered liere for the appellees directing a foreclosure, appointing the same commissioner as appointed below to make sale and report to the court below for further proceedings.

, Judgment modified, and cause remanded.