Cusimano v. Spencer

Mrs. R.A. Spencer, late of the county of Pike, left at her death a small estate consisting of three acres of land, each acre of which was the subject of a separate or distinct metes and bounds description. The personal property of the decedent being insufficient to pay her debts, her administrator filed a petition to sell the land of the estate to pay said debts. In the administrator's petition one acre of the land was described in such manner as not to include the acre intended, but the description was for a different acre not owned by the estate. The same erroneous description was followed in the decree ordering the sale, in the decree confirming it, and in the commissioner's deed to the purchaser. J.C. Spencer became the purchaser, and paid the purchase price.

About seven years after the purchase at the commissioner's sale, J.C. Spencer filed his bill averring that the commissioner in drafting his commissioner's deed, had made a mistake in the description, and the bill prayed that the commissioner's deed be reformed so as to embrace the acre which belonged to Mrs. Spencer's estate instead of the different acre described in the commissioner's deed. Mrs. Spencer died intestate, and two of her heirs at law, appellants here, filed an amended answer and cross-bill in which it was averred that the description of the acre not owned by Mrs. Spencer ran all the way through the proceedings from the original petition of the administrator, down to and through the commissioner's deed. This averment in the cross-bill was not denied, and, therefore, stands as a fact in this record. The trial court nevertheless entered a decree reforming the commissioner's deed, so as to make it include the omitted acre, and this to the contrary of the decision by this court in Wells v. Ellabee, 93 Miss. 268, 270, 46 So. 497, that a commissioner's deed cannot be reformed when it is in accord with the decree which ordered the sale. The reasons for this rule are so obvious that no statement of them is required.

Appellees seek, however, to defend the decree on two grounds: First, that the heirs at law, including appellants, received and accepted the balance of the proceeds of the sale, after the debts had been paid therefrom, and that they are thereby estopped to interfere now, even as to the acre not sold by the commissioner. The trial court found this to be the fact, but appellees' contention as to the omitted acre has been decided against them by Pearson v. Caldwell, 93 Miss. 637, 47 So. 436. The estoppel is limited to the land described in the proceedings by which it was sold, and does not extend to land not thereby sold, even though otherwise intended.

The second ground is that inasmuch as the purchaser, J.C. Spencer, paid the purchase price, was a purchaser in good faith, and has been in possession more than two years, he is protected by the two-year statute of limitations applicable to sales made by order of the chancery court, sec. 2315, Code 1930, which statute reads as follows: "An action shall not be brought to recover any property hereafter sold by order of a chancery court, where the sale is in good faith and the purchase-money paid, unless brought within two years after possession taken by the purchaser under such sale of the property."

What the purchaser here took possession of was not the acre sold by the commissioner. The acre of which he took possession was owned by Mrs. Spencer, it is true, but it is also true that it was not sold by the commissioner. If the statute were given the interpretation contended for by appellees, we would have to amend it so that it would read, "An action shall not be brought to recover any property hereafter sold, or intended to be sold, by order of the chancery court, where," etc. Although this statute has been in our codes for many years, and although it has received a construction curative of everything back of the decree of sale, it has never before been suggested that it would extend to lands not described in the decree; and no authority for such a contention has been found in other states having a similar statute. And none could foresee the dangers which such a construction as urged by appellees would import into such cases. For instance, a decree has ordered the sale of a certain parcel of land which, as described, has little or no value, and consequently would obtain bidders at the sale for a low price only. But the purchaser takes possession of another parcel of great value and which, if actually described in the decree of sale, would have brought at the sale a high price; and the purchaser having taken possession of the more valuable parcel, he comes in after two years and says that the latter parcel was the one intended to be sold, and which he thought he had bought at the sale, and invokes the cited two-year statute. He would not be seriously heard to make such a contention, and this being a sufficient illustration, and since the test of the soundness of any rule is what may be done under it rather than what has been done in a particular case, we pursue the discussion no further than to announce that the statute applies to the land described in the decree of sale and to no other — whatever the parties or any of them may have thought or intended, and such a construction of the statute, instead of working injustice, as the minority contends, prevents injustice.

There is no suggestion as to how the commissioner offered the three lots at the sale. He may have offered and sold them separately, and thence combined them for convenience into one deed, so far as the record shows; whence the present decree will be affirmed as to the two acres which belonged to Mrs. R.A. Spencer, and which were correctly described in the administrator's petition to sell, in the decree ordering the sale, and in the corresponding commissioner's deed; but as to the other acre owned by Mrs. Spencer but not sold by the commissioner, the decree will be reversed and the cause remanded.

After the purchase by him at the commissioner's sale, J.C. Spencer, on September 30, 1935, sold one acre of the land to Craft, who thereupon went into possession of the acre purchased and improved it, and in doing so spent more than $800 on it, all of which Craft alleges was known to appellants at the time, etc. We are of the opinion, as best can be gathered from this awkward record, that the acre sold to Craft was one of the acres correctly described throughout the proceedings, and hence would be one of the two acres as to which we affirm the decree, and which would make Craft's title good.

But the dissenting judges have expressed doubt, and think that it is not clear that Craft's acre is one of the two acres, title to which we have held good as against appellants. In order that no injustice may be done we now add that if, on the remand, it shall be established that Craft's acre was in fact the omitted acre, he shall have the right to show that fact, and the further facts as to his improvements made with the knowledge of appellants at the time, if he can, and so as to bring himself within the rules announced in the long line of cases illustrated by, and pointed out in, Kelso v. Robinson, 172 Miss. 828,161 So. 135.

Affirmed in part and in part reversed and remanded.