Thirteen heirs of N.L. Hudson, Sr., claiming to be the sole and only owners in fee of the 360 acres of land described, as well as of all the mineral interests therein, filed their bill in the Chancery Court of Jasper County against 106 defendants, including the Gulf Refining Company (which, under a mineral lease from certain of its codefendants, had developed and was developing its holdings into an actual oil-producing acreage), and against other defendants, who in addition to Gulf Refining Company, claim under other mineral leases covering in the aggregate all of the lands in question.
The claim of the said Hudson heirs is that during the year 1878 or 1879, N.L. Hudson, Sr., the then owner of the land, had conveyed all of it to his wife, M.E. Hudson, for the term of her natural life, and at her death to the children of said N.L. Hudson, Sr., for life, the remainder in fee to their children; that the deed was duly recorded, but the record thereof was destroyed by the courthouse fire in September 1932; and that complainants have not been able to find the original deed for recordation. It was further averred that N.L. Hudson, Sr., died in 1895, and M.E. Hudson, in 1928, and that subsequently to the date of the deed conveying a life estate to her, M.E. Hudson had executed deeds of conveyances to various grantees as if she owned the title in fee simple. Complainants, appellants here, also charged that by these *Page 347 conveyances the 106 defendants were, as latest grantees or their heirs, the present adverse claimants; and that by reason of the facts, supra, appellees had become, and remained since the death of M.E. Hudson, the tenants as sufferance of the complainant heirs.
Nearly all of the numerous defendants answered, and Gulf Refining Company and some twenty-five other defendants made their answer cross-bills. The answers denied that Hudson had made any such deed to his wife in 1878 or 1879, or at any other time in any such terms as asserted by complainants. On the contrary, they averred that, in fact, Hudson had made his wife, M.E. Hudson, on January 23, 1880, a deed to the lands in fee simple absolute, this deed being recorded in Book 20, p. 135 of the record of deeds of the county. The defendants, appellees here, averred also that by unbroken chains of title from M.E. Hudson to them, as well as by more than forty years of adverse possession, they have become the owners, and that the complainants never in fact owned any interest what ever in the lands.
The answer by Gulf Refining Company, in addition to elaborate denials and averment touching the title by executed conveyances, adequately alleged adverse possession in its predecessors in title for the long period of years aforesaid. Making its answer a cross-bill, it prayed that its mineral lease be confirmed as against the original complainants, and prayed for alternative as well as for general relief. The twenty-five other defendants who made their answers cross-bills, in addition to setting up their particular interest in the premises, adopted all the denials and averments of the answer of the Gulf Refining Company and likewise, and as stated, made their answers cross-bills. The answer and cross-bill of Gulf Refining Company was filed on Sept. 16, 1944, and those of the other twenty-five cross-complainants on September 30, 1944. On December 12, 1945, the complainants filed a motion to dismiss their original bill aforesaid without prejudice, which motion was actively resisted *Page 348 by numerous of the original defendants, and the motion was overruled.
Had there been no cross-bills, it may have been that the complainants would have had the right to dismiss, as they sought to do, but leaving that question aside for the moment, we are of the opinion that they had no right to do so and at the same time secure the dismissals of the cross-bills, unless by the consent, express or implied, of the cross-complainants.
In days gone by it was the general rule that the dismissal of the original bill carried with it the cross-bill, but the modern rule, and particularly in this State, is as stated in Griffith Miss. Chancery Practice, Section 384, which reads as follows:
"The strict theory of the cross-bill is that it is a dependent of the original bill, in consequence of which formerly it was generally held that a dismissal of the original bill carried with it the cross-bill, but this rule too has been departed from so that now if the cross-bill seeks affirmative relief separately and independently of the original bill — although, of course, growing out of or touching the same subject matter involved in the original bill, as it must — the court will at the insistence of the cross-complainants retain it and proceed with its issues, if the cross-bill and its facts be complete enough within themselves and without the aid of the original bill to make the granting of relief thereon practicable and proper. It is at last a matter within the sound discretion of the court to be wisely exercised towards the advancement of justice between the parties. And not only will the court retain the cross-bill in every case where if the matter had been brought in an original bill it would have retained it, but it should be kept in mind that the advancement of our procedure has developed a definite disfavor towards any practice which tends to turn parties out of court when once they were fairly in, and of sending them away either to transform the pleadings or else to begin the matter over again. Therefore, it is only when the matter *Page 349 of the cross-bill, independently considered, is so clearly of law as to be distinctly a better subject of determination at law, that a cross-bill will be dismissed, or transferred, merely because the original bill has been dismissed."
This statement is in accord with the weight of authority elsewhere, as may be found in 30 C.J.S., Equity, Section 388, pp. 804-806.
Thus it is seen that the cross-bill will be retained where, if the matter therein had been brought in an original bill, it would have been retained, and that in such case it is only when the matters of the cross-bill, independently considered, are so clearly of law as to be distinctly a better subject of determination at law, that a cross-bill will be dismissed merely because the original bill has been dismissed. In other words, where the relief sought by the cross-bill is a matter cognizable at law, dismissal of the original bill carries with it, generally, the cross-bill, and the cross-complainant is relegated to his remedy at law. But here the prayer of the cross-bills sought confirmation of title to land, and hence was equitable, as pointed out further in the succeeding paragraph.
Here, the cross-bills bring forward, with elaboration, the issue of adverse possession, and rely thereon in addition to the title by conveyances, a feature in respect to which no substantial aid is furnished by the original bill, and as to Gulf Refining Company it prays that its title be confirmed in it as against all the original complainants. This right to have an affirmative adjudication in chancery of title to real estate is one conferred by statute, supplementary to the ancient rules in equity on that subject. It is not so clearly of law as to be distinctly a better subject of determination at law, the fact being that, at this day in this State, land-title questions are almost always presented in the chancery court, the action of ejectment having become nearly obsolete in actual practice, and certainly so in cases involving parties as numerous as in the instant case. *Page 350
It is said, however, that as to Gulf Refining Company, the latter filed no objections to the motion to dismiss and thus did not insist that its cross-bill be retained, to which Gulf Refining Company replies, citing Griffith Chan. Prac., Section 407, that no formal objection or response to such a motion was required, and the burden of proof to support it was on the movant; and further that the record shows that Gulf Refining Company, by its attorney, was present and participated in the hearing wherein the motion to dismiss was resisted.
We are of the opinion, therefore, that the court was correct in not dismissing the cross-bills, and in proceeding to a final hearing on them, without the attendance of cross-defendants, who purposely absented themselves; and, further, that upon the record the court was correct in sustaining the cross-bills on the merits.
This brings us back to the original bill — whether it should have been dismissed, retaining the cross-bills. This, as it seems to us, has now become, as to all practical purposes, a moot question. Under the cross-bills every issue and question, which could have been determined under the original bill, were adjudicated against the original complainants and cross-defendants in favor of cross-complainants and their privies. Thereby the whole matter has now become res adjudicata. Von Zondt v. Town of Braxton, 149 Miss. 461, 465, 115 So. 557; Watkins v. Mississippi State Board, 170 Miss. 26, 32,154 So. 277. Upon similar principles see also Griffith's Chan. Prac. Sections 263, 363, 571, 624.
In view of the foregoing announcement of our conclusion here, which completely determines the ultimate solution of the problem on the appeal before us, we do not deem it necessary to discuss other points, on both sides, ably argued in the several briefs filed.
The decree of the Chancery Court will, therefore, be and is affirmed.
Affirmed. *Page 351
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