Bates v. Strickland

*645 Anderson, J., delivered the opinion of the court. Appellant filed her bill in the chancery court of Marshall county to remove clouds from and establish title in herself to an undivided interest in certain lands in said county described in the bill. Appellees demurred to the bill, and from a decree overruling their demurrer appealed to the supreme court, where the decree was affirmed, and the cause remanded with leave to appellees to answer the bill, which they did, denying its material allegations. There was a trial on bill, exhibits and answer, and exhibits and proofs, resulting in a final decree dismissing appellant’s bill, from which she prosecutes this appeal. Appellant and appellee claim title to the land in controversy through a common source, Dr. James M. Thomson, who died testate in 1848. Whether appellant’s title to the land in controversy be good depends on the validity of partition proceedings had in the chancery court of Marshall county more than forty years before the beginning of this suit in the cause therein styled “No. 210, Morgan H. Thompson et al. v. Wm. M. Strickland, Sr., et al.” That was a partition proceeding involving the lands in controversy in which cause they were sold by the chancery court, and purchased by Wm. M. Stricldand, Sr., through whom appellees claim title. The decree for the sale of the lands was entered in that cause of August 10, 1877. The sale was made and confirmed by the court, and in pursuance of the decree of the court a deed was executed and delivered by the commissioner to said Wm. M. Stricldand, Sr. If that sale be void appellant is entitled to maintain her bill, and to the relief therein prayed for. W. M. Strickland, Sr., the purchaser at that sale, was the father of appellant. James M. Thomson was her grandfather. Her contention is that under the will of her grandfather Thomson, her mother, who died in 1863, took a child’s share in the lands involved in this cause in fee. Appellant and three other children were born to *646 W. M. Strickland, Sr., and his wife, Mildred Thomson. The latter died prior to her husband, who died in 1908. Appellant contends that on the death of her mother her father, ¥m. M. Strickland, Sr., became endowed with curtesy in the lands of his wife devised to her by her father, which was therefore a life estate, while their children took the remainder in fee, and that their father having died in 1908, and, this cause having been instituted within ten years of his death, appellant is not barred from asserting her rights in said lands; that the ten-year statute of limitation did not begin to run ag;ainst her until the expiration of the life estate of her father. Appellees’ position is that said partition proceedings through'which the lands were sold were valid; that W. M. Strickland, Sr., was not entitled to curtesy in the lands; that the decree of the court under which the lands were sold in that cause necessarily adjudicated all the material questions involved in the present cause, including the question whether the lands were subject to partition or sale for a division of the proceeds thereof among the parties in interest, and therefore they argme that that question, in the present cause, is res ad,judicata; that the court in the former cause had jurisdiction of the subject-matter, including' the question as to equitable conversion and the parties in interest, and even though it may have erred in holding that the lands involved were subject to partition, the remedy was by appeal in that cause; that such errors cannot be corrected in this cause. The additional controlling; facts out of which the questions involved arise are substantially as follows: James M. Thomson, the grandfather of appellant, who is the source of title of both appellant and appellees, died in 1848, leaving a last will and testament, by which he bequeathed and devised his estate to his four children, Mrs. W. M. Strickland, Sr., Mrs. Hudson, and Morgan Thomson and another child who died intestate whose interest therefore descended to her said brother and sisters. The pertinent provision of Thomson’s will is in this language: *647 “My residence in the town of Holly' Springs and the Compere tract of land I wish leased out until some one of my children may marry, and if agreeable then all of my children to live together upon said residence until the youngest shall become of age, then the property thus named shall be put up and sold to the highest bidder of the children then living.” Morgan Thomson and his sister, Mrs. Hudson, for whom W. M. Strickland, Sr., was guardian, filed the bill in said cause No. 210 in the chancery court of Marshall county, against said W. M. Strickland, Sr., also making his children, including appellant, parties defendant, by which they sought to cancel a deed to their interest in said lands theretofore executed by them to said Strickland, and to have the lands sold for a division of the proceeds thereof between the parties in interest, and also to recover rents and profits from the defendant W. M. Strickland, Sr. When that cause was begun appellant was a minor, but when the final decree therein confirming the sale o"f the lands was entered she was an adult. The court appointed a guardian ad litem in that cause to represent and defend the same for appellant. The will of James M. Thomson was before the court in that case. Every material fact developed in the present case touching the character of estate owned by W. M. Strickland, Sr. in these lands was before the court in that case. Our statute (section 3521, Code of 1906; section 2833, Hemingway’s Code), conferring the power on the chancery court to partition lands held by joint tenants, tenants in common, or coparceners having an estate in possession or a right of possession, etc., expressly excepts therefrom estates held in “reversion or remainder.” That exception in the statute existed at the time said partition proceeding was begun, and that has been true of our partition statutes ever since. Appellant’s argument is that on the death of the wife of W. M. Strickland, Sr., in 1863, curtesy not then having been abolished by statute in this state, he became a ten *648 ant by curtesy in Ms wife’s lands, and therefore the owner of a life estate therein, and his children, one of whom is appellant, took the estate in remainder in fee, and therefore the court in the partition proceeding undertook to- partition an estate in remainder, which could not be done under the law. Appellees argue, on the other hand, that there was no life estate in W. M. Strickland, Sr.; that he was not a tenant by curtesy in his wife’s lands, because, under the will of'her father providing for the sale of said lands, an equitable conversion took place when the will took effect; that therefore the lands were to be treated as money, into which the will required them to be converted, and, there being no tenancy by the curtesy in the money of the wife, the money belonged to the wife’s estate; that the result was that no remainder or reversionary interest in the lands was, partitioned or sold for division. Appellant contends that the former cause is not res adjudicata of the questions involved in this cause, because they were not presented by the pleadings, nor passed upon by the court in that-cause. It is true they were not specifically presented by the pleadings. In determining'; whether a question is res adjudicata the following principles of law should be kept in mind: That a judgment is presumed to be correct where there is any possible state of facts to justify it. Starling v. Sorrell, 134 Miss. 782, 100 So. 10; Duncan v. McNeill, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101. And that where a court has jurisdiction of the subject-matter and the parties in interest, its judgment is- not alone res adjudicata of the questions actually presented by the pleadings, but is also res adjudicata of all questions necessarily involved, and which could have been presented. Dean v. Board of Supervisors, 135 Miss. 268, 99 So. 563; Vinson v. Colonial & U. S. Mortgage Co., 116 Miss. 59, 76 So. 827; Harvison v. Turner, 116 Miss. 550, 77 So. 528; Hardy v. O’Pry, 102 Miss. 197, 59 So. 73; *649 Fisher v. Browning, 107 Miss. 729, 66 So. 132, Ann. Cas. 1917C, 466. Was the question whether the lands involved in this cause subject to partition or sale for division of the proceeds necessarily involved in the former cause? As it appears to us, that question lay right at the threshold of the consideration of that cause. It is true that it was not made an issue by the pleadings in the case, as appellant contends. Nevertheless the decree entered necessarily adjudicated that the lands involved were subject to- partition. The court had to so decide in order to take the first step in the case. It was necessarily involved. It was a necessary decision. But the effect of appellant’s position is that even though that be true the chancery court was without jurisdiction to make the decision it did. Appellant.says in effect that there was want of power to so decide, because such a decision was right in the face of the law forbidding the partition of a reversion or remainder interest in the land. Appellant overlooks, however, the fact that, if under the will of James M. Thomson there was an equitable conversion of these lands into money, W. M. Strickland, Sr., was not a tenant by curtesy of his wife’s interest in said lands, and therefore there was not involved, in said partition proceeding, a remainder or reversionary interest in the land. The court below in the present case put its decision squarely on the ground that under the provision of the will of James M. Thomson above quoted, there was an equitable conversion of his lands into money. The doctrine of equitable conversion is founded upon the principle that equity will regard a thing which ought to be done, or is directed to be done as actually done. Under this principle, where a testator in his -will directs his land to be converted into money for division among the beneficiaries under his will, an equitable conversion from land to money takes place “and subsequent disposition will be governed by the rules applicable to that species *650 of property.” Hardee v. Cheatham, 52. Miss. 41; Caldwell v. Willis, 57 Miss. 555; 3 Pomeroy’s Equity Jurisprudence (4th Ed.) sections 1150 to 1176, inclusive. We do not decide, because it is not necessary to decide, that under the doctrine of equitable conversion W. M. •Strickland, Sr., took no- interest in these lands belonging to his wife as tenant by curtesy, and that therefore when the lands were partitioned there was no remainder or reversionary interest partitioned. We do hold, however, that that question was necessarily involved in the partition cause and was necessarily decided. The court in that cause, as the trial court in this cause did, could have reasonably so held. And it may be conceded that the court in so holding in that cause committed error, and still the question is res adjudicata, because such errors can only be corrected on appeal. In other words, if the court in the partition cause decided, as it was bound to have done in order to make a decree of sale, that the lands involved were subject to partition, that there was no remainder or reversionary interests therein sought to be partitioned, and committed error in so. deciding, the only remedy for the correction of such error was by appeal. It was an error of judgment not of jurisdiction. The court had jurisdiction of the subject-matter, namely the partition of lands, and had jurisdiction of the parties, including the appellant in this cause. As we view it, in the present cause appellant is seeking to relitigate the' fundamental question involved in the former cause, although not there specifically presented by the pleadings, but which the court necessarily decided in order to make the decree of sale. We said in Dean v. Board of Supervisors, supra, quoting the supreme court of the United States in Jeter v. Hewitt, 22 How. (63 U. S.) 352, 10 L. Ed. 345, that “res judicata renders white that which is black, and straight that which is crooked.” Appellant contends that the affirmance of this case, on the former appeal on bill and demurrer overruled by the trial court, is res adjudicata of the questions involved in *651 her favor. That the case now before the court on the facts is the identical case made by her bill, which was before the court on demurrer on the former appeal, and therefore there is nothing left for the court to decide. That at least if the questions here involved are not res acljudicata, the decision of the court on that appeal constitutes the law of the case. It seems that a complete answer to that position is that the case now before the court is not the case made by appellant’s bill on the former appeal. The demurrer only reached the bill and exhibits. The will of James M. Thomson, in which lies the foundation of the claim of both appellant and appellees, was not made an exhibit to the bill. Nor was it set out in appellant’s bill that she was a party to the partition cause, and an adult when the final decree therein was entered, and was represented in that cause while a minor by a guardian ad litem who answered for her. We are of opinion that there is no merit in this contention of appellant. Affirmed.