Talley v. Talley

Smith, C. J.,

delivered the opinion of the court.

Appellee and a number of other persons filed a bill in the court below, alleging that they were tenants in common of certain land that was incapable of a division in kind, and praying that it be sold for partition. A decree was entered in accordance with this prayer, and a commissioner appointed to sell the land. The sale was duly made, and the land was bid in by appellee. When the commissioner reported this sale to the court for confirmation, an objection thereto, in the form of a petition, was filed by appellant, who had not been made a party to the original bill. She alleged that she was the widow of. Allen Talley, deceased, who died seised and possessed of the land sought to be sold, leaving as his heirs herself and the parties to the original bill, who were his children and grandchildren; that the land in question was Allen Talley’s homestead, and that she had continued to reside thereon since his death, and had not agreed, and does not now agree, to the sale thereof. To this petition a demurrer was interposed, overruled, and then an answer was filed, admitting that appellant was Allen Talley’s widow, that he died seised and possessed of the land, and that it was his homestead, but alleging that appellant had consented to the sale thereof. The answer further set forth that appellant had been omitted from the original bill by mistake.

Subsequent to the filing of this answer, but how long does not appear, except in the testimony of one of the witnesses, the following motion was filed by appellee and the other parties to the original bill:

“Comes the debits (?) by their attorney and moves the court to dismiss complainant’s bill, and grant them a decree pro confesso, because said debt (?) has failed and refuses to prosecute said cause.”

This motion was sustained by the court, appellant’s petition dismissed, and an order entered “that John Talley et al. proceed with the confirmation of said sale of land. ’ ’ Thereupon a final decree was entered, approving the sale and directing that a deed be made to appellee, and, further, “that the said Rhoda Talley be added and included, and share equally in the proceeds of said sale.”

Appellant then filed the bill in the court below, now under consideration, to which Steve Talley, one of the parties to the suit for partition and the purchaser of the land at commissioner’s sale, is the only defendant. This bill set forth the history of the partition proceedings, alleging that complainant had not consented to the sale of the land, and praying that the decree awarding the partition and confirming the sale be vacated. To this bill Steve Talley filed an answer, admitting all of the allegations of the bill, except that the complainant had not consented to the sale, and alleging that by the decree dismissing appellant’s objection to the confirmation of the sale, together with the decree confirming the sale, and directing that she share equally with the other parties to the bill in the proceeds of the sale, her rights have been adjudicated. Certain evidence was taken in the matter, and the cause came to hearing on bill, answer, and proof. By this evidence appellee sought to show that appellant had consented to the sale; the consent being given by her son, who attended the sale, and who told appellee’s attorney that his mother had authorized him to agree thereto. No evidence was introduced that this son had in fact been so authorized, and he himself and his mother both testified that he had no such authority,.

Appellee has not yet paid to the commissioner the amount of his bid for the laud, nor has the deed to him been executed. From a decree dismissing appellant’s-bill, this appeal was taken.

This bill, while not so termed, is one of review, and therefore any defects in the decrees therein complained of, and sought to be vacated, which are apparent on the record, are now open to correction.

Conceding that appellant’s petition, praying that the sale be not confirmed, was properly dismissed for want of prosecution, the court should not have/ gone further, and, in the decree confirming the sale, attempted to adjudicate appellant’s right in the matter. May v. Hubbard, 94 Miss. 456, 49 So. 619. Since the decree dismissing appellant’s petition, conceding that it was properly entered, does not bar her from instituting another suit for the determination of her right to prevent a sale of thejnnd (Baird v. Bardwell, 60 Miss. 164), and since, under section 1659 of the Code, the land cannot be sold without her consent, the decree ordering and confirming the sale thereof should be vacated, and the original bill, praying for the sale, should be dismissed.

Final decree would be entered here, but for the fact that appellant failed to make'the other heirs of Allen Talley parties to her bill; and while no objection on this ground was interposed in the court below, they should, on the return of the cause to that court, be brought in as parties defendant.

Reversed and remanded.