Sims v. Riggins

I concur in the opinion and conclusion reached by Mr. Justice THOMAS. The authorities followed and relied upon by the majority, in my judgment, are not apt, and, for that reason, ought not to control the decision in this case. The bills in those cases were for objects and purposes entirely different from the objects and purposes of the bill in this case. The one class seeks the jurisdiction and powers of equity, to award new trials in cases which have proceeded to final judgment in courts of law. The other class, to which this case belongs, seeks to enjoin prosecutions of pending actions at law. The one class seeks to have two or more trials in courts of law; the other seeks to prevent any trial in such courts. The objects and purposes of the one class are diametrically opposed to those of the other. The purpose of the bill in this case is to enjoin the prosecution of an action of ejectment in a court of law, not to award another trial in a court of law, as was the purpose of the action in the cases followed by the majority. The bill in this case seeks to enjoin and prevent the prosecution of a purely technical and legal action, because to allow it to be so prosecuted would be unconscionable and inequitable, and would allow the plaintiff to use the court of law as an instrument with which to perpetrate a fraud upon the complainant in the court of equity. The only similarity between the two classes is that one seeks relief against a wrong already perpetrated, while the other seeks to prevent it from being perpetrated or consummated in the first instance.

The majority treat the bill in this case as if its main equity sought to have a new trial in the chancery court, as for the sale of lands for partition, when no such relief is sought. The bill in this case, as an incident to the injunctive relief sought, and to remove a cloud from complainant's title, and to prevent the respondent, and others in the future, from bringing actions of ejectment against complainant, asks to have plaintiff's deed and the records of the chancery court corrected of purely clerical errors, the result of accident and mistake on the part of the scriveners who prepared the papers in the proceedings in the court of equity, which mistake resulted in forming a cloud upon complainant's title. No one disputes the validity of the proceedings in the chancery court, or seeks to set aside the decree. All that is sought, as to it, is to correct the proceedings to the cure of purely clerical errors; that is, errors of accident or mistake on the part of the scriveners in preparing the papers.

Partition proceedings are strictly in rem, and not in personam. It is not necessary that all the joint owners be parties to the proceeding or have notice thereof. Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am. St. Rep. 363. The court takes jurisdiction of the land which is jointly held, as it does of property attached, and deals with the thing, not with the person; and after it is partitioned, it says, in the decree, which joint owners shall have each particular part so partitioned. If it cannot be so partitioned as to afford equity to each tenant in common, the court sells the thing it would otherwise have partitioned, and divides the purchase price, in lieu of the land.

It appears here, without dispute — that is, it is alleged in the bill, and the demurrer confesses the allegation — that the 40 acres of land in question was not a part of the thing sought to be partitioned; that it was not in fact or in law partitioned; that the court never acquired jurisdiction of it for that purpose; that no one of the tenants in common ever thought it was to be, or was in fact, partitioned; that the purchaser never thought he was buying it, or that he did in fact or in law buy it, and, as conclusive evidence of this, he took possession of all that was sold and all that he bought, and never then claimed this land, or any more land. It further clearly appears that several years after the sale the purchaser rented this very land from complainant, and that he never asserted any claim or title thereto, as purchaser, until by chance or accident some one happened to discover this clerical error in the proceedings in the chancery court and in his deeds, and that when he was informed of this fact he sought to take advantage of it, and thus get possession of complainant's land, not his own land.

The main equity of this bill is to enjoin prosecution of the action of ejectment. The incidental equity is to remove a cloud from title, and this cloud is to be removed by correcting purely clerical errors in appellant's deed, and similar errors and mistakes in the records of the chancery court, which resulted in or led to the error in the deed.

Mr. Justice THOMAS concurs in these views of the writer.