Hassam v. Day , 39 Miss. 392 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This bill was filed by the plaintiffs in error for a partition of certain lands in which they claim a joint interest with the defendants.

It sets forth the title of the complainants, and shows that a partition of the premises had been made between the defendants by a partition and proceedings in the probate court, in which the rights and interest of the complainants were not noticed and were wholly disregarded. These proceedings are alleged to have been fraudulently conducted as to the complainants, and to be unjust and illegal; and the prayer is, that the partition be set aside, and a partition be made, giving to the complainants their portion of the premises.

The answers of two of the defendants, principally interested in the property, deny the title of the complainants, set up their own titles, and aver that the partition was fairly and legally made; and they claim by virtue of adverse possession against the complainants, and in virtue of the partition which was made before the legal title of the complainants was acquired.

The case was submitted on final hearing in the court below upon the pleadings and proofs ; but at whose instance does not appear by the record. There is very little proof touching the material question of the title of the complainants, and upon the controverted point whether they were entitled either at law or in equity to the interest in the lands claimed in the bill. It is quite clear — and indeed it appears to be admitted by the counsel for the plaintiffs in error — that their legal title is not fully established. But it is insisted that the bill should have been retained, and the complainants allowed to establish their title at law. However this may be, if the complainants had taken that course in the court below, it cannot avail them here and in the present attitude of the case.

The case was submitted for final hearing upon its merits. No application was made to retain the bill until the title of the complainants could be determined at law. It was submitted for final disposition as it was presented; and the question was, whether the complainants had made a case entitling them to have the previous partition set aside and a new partition made.

It is well settled that equity will not decree a partition unless the titles of both parties are clear. Garrett v. White, 3 Iredell Eq. 13; Wilkin v. Wilkin, 1 John. Ch. 111. Eor partition cannot be decreed except where the titles of both parties are clear. Much less could a prior partition, made in behalf of one party who is admitted to have a clear title be set aside at the instance of another party claiming a doubtful and controverted title.

As the cause was presented, it was submitted for final decree, the complainants claiming a decree for partition. It is manifest from the nature of the defences set up to the complainants’ title, that the court would not have been justified in granting that relief as the case was presented; and, as it was submitted for that purpose, it was proper for the court to deny the relief; and, there being no application for leave to establish the complainants’ title at law, to dismiss the bill.

Upon this view of the case the decree must be affirmed. '