Pipes v. Buckner

Campbell, J., delivered the opinion of the court. ■ Lewis Pipes had eight plantations, and several children. He settled his children, or some of them, on these plantations, and among them Robert Pipes was placed on a plantation called “Anchorage,” and James Pipes, another son, was permitted to occupy a plantation called “Franklin.” It was the expectation of these sons, and no doubt the purpose of the father, that title to “Anchorage ” would be vested in Robert, and to “Franklin ” in James, by act of the father, but he died intestate, not having conveyed title to the sons, or either of them, and at the time of his death was the owner of the eight plantations spoken of. Other children of the intestate occupied other of these plantations in the same way, and with like expectation as Robert held “Anchorage” and James held “Franklin.” Lewis Pipes died in July, 1868, and soon after his death it was mutually agreed — 852 — between his adult sons, four in number, including Robert and James, that neither should be disturbed in his possession of the plantation he occupied before a partition among all the heirs of all the plantations, and when, such general partition should be made, each of them, so far as it could be done by the consent and agreement of the others, should continue in his possession as then existing, and hold the land he then occupied as the ascertained one-seventh part of all of the lands of their deceased father, against his coheirs in fee; and it was expressly agreed, that if the “Franklin ” place should, in the general partition by judicial proceedings rendered necessary by the fact that there were infant grandchildren of the intestate entitled to shares of the land, who could not enter into a valid agreement about it, be allotted to any of said brothers, James Pipes should, nevertheless, retain and hold it as his seventh part of his father’s lands, in lieu of and exchange for the plantation that should be so allotted to him, and the other brothers should in like manner retain and hold as their own, severally, the plantations then in their possession. In pursuance of this manifest purpose of the brothers to secure to each the plantation he was on in December, 1868, the four brothers mentioned, and their sister, Rachel Marsh, filed their petition in the probate court for partition of the land descended from their deceased father, and in January, 1869, a decree for the appointment of commissioners to make partition as prayed for was had. In November, 1869, the report of the partition by the commissioners was filed, from which it appears that the “Franklin ” plantation was allotted to Robert Pipes, and the “ Anchorage ” place to James Pipes, and Robert was required to pay $1,077 to Mrs. Rachel Marsh, for the greater value of “Franklin,” and James was to pay $190.86 to Mrs. Marsh, for “Anchorage.” After the report of the commissioners, and before its confirmation, James Pipes paid Mrs. Marsh the $1,077 assessed against “ Franklin,” and Robert paid her the $190.86 assessed against “ Anchorage,” and each continued in possession and use of the plantation he had before occupied, and held and — 853 — treated it as his own, in accordance with the parol agreement which had been made soon after the death of their father, and it was matter of notoriety in the vicinity that “Franklin” was the property of James Pipes, who used it in all respects as his own, as Eobert used and possessed “ Anchorage ” as his, neither exercising any dominion or control over the plantation possessed by the other, but observing and regarding in all respects the agreement made as aforesaid, to that end. The report of the commissioners allotting as aforesaid was duly confirmed, and a decree made in accordance with it, in July, 1870. After the allotment by the commissioners, James and Eobert Pipes, directed a deed to be drawn up for their mutual execution, to vest title of “Anchorage ” in Eobert, and of “ Franklin ” in James, and such a deed was drawn in January, 1870, but never executed, not from unwillingness, but from neglect. In this condition of things, and with James Pipes on the “Franklin ” place, as before stated, and Eobert in possession of “Anchorage,” in February, 1871, H. S. Buckner recovered judgment against Eobert Pipes, execution on which was levied on the “ Franklin ” plantation aforesaid, and it was about to be sold, when James Pipes, who was still in possession of it as before, exhibited his bill against Buckner, to restrain the sale on the state of facts presented above. The decree on final hearing was against James Pipes, and he appealed. The foregoing statement of facts is a full and precise presentation of the case, as deduced from the pleadings and evidence, upon a laborious examination and careful consideration of the record, and the elaborate arguments of counsel upon the facts of the case, as well as the legal questions involved. Upon the facts of this case, it is clear that Buckner, the judgment creditor of Eobert Pipes, can assert only such right as his judgment debtor could to “ Franklin ” plantation, possessed at the date of the judgment by James Pipes, and the single question therefore is, whether there was a valid parol partition of “ Franklin ” and “Anchorage” between James and Eobert Pipes, so as to preclude Eobert in a court of equity from asserting any claim — 854 — to “Franklin." Many authorities announce the doctrine of the validity of a partition of land by tenants in common by parol agreement between them, to own and occupy certain parts of the common property in severalty, followed by occupancy in pursuance of the parol agreement. Agreement to divide, and occupancy in accordance with the agreement, are held to sever the tenancy and estop each from claiming title to, or interfering- with the possession of the other, held according to the parol agreement. This doctrine has been sanctioned in this state. Wildey v. Bonney’s Lessee, 31 Miss., 644; Natchez v. Vandervelde et al., id., 707. It is not changed by the code of 1857, which has no effect upon it. We are not disposed to extend this doctrine, but will apply it within the precise limits in which we find it. The right to sever the tenancy in common and fix the rights of parties in severalty, to what was before in common, is not affected by the fact that the parol partition relates to two separate and distinct tracts of land not contiguous to each other. In the case of a single tract, or of several, it is but a severance of the joint possession which before is in common, and the same principle applies. The real difficulty in the application of the well settled doctrine of the validity of a parol partition to this case arises from the judicial allotment which fixed the title of “ Anchorage’’ in James Pipes, and of “Franklin’’ in Bobert Pipes. But for this, there could hardly be a question about it. Does the fact that judicial proceedings were resorted to for partition, participated in by James and Bobert Pipes, which resulted as above, destroy the legal effect of the agreement between them, that whatever the result of the judicial allotment, James should have “Franklin,” and Bobert should have “Anchorage,” and the continued occupancy of each in accordance with the agreement? And does the fact that the parties considered it necessary or expedient to have a deed of exchange mutually executed as to “Franklin ” and “ Anchorage ” render invalid the partition result — 855 — ing from their agreement and possession, if these amounted to a partition ? Both questions must be answered in the negative. The judicial proceeding was in furtherance of the preceding parol agreement between the brothers as to the plantations. It was resorted to from necessity, because of the disability of some of the tenants in common. It was but a means to an end, and that the removal of all legal difficulty from the way of the accomplishment of the agreement of the parties as to the ownership in severalty by James of “Franklin,” and'by others of their respective possessions as agreed on. The precedent parol agreement, the judicial proceeding in pursuance and fulfillment of it, the payment by James Pipes of the $1,077, directed in the allotment to be paid for equality between “ Franklin " and the “ Home ” place allotted to Mrs. Marsh, and of the $190.86 by Robert on account of “ Anchorage,” and the precedent and subsequent continuous and uninterrupted possession and use by James of “ Franklin,” and by others of their places as agreed on, are to be viewed as parts of one whole, and constitute a valid partition between the parties, and the purpose of the parties, after the allotment, to have a deed of exchange, and their direction that it should be prepared for their execution, did not affect their several and respective rights as arising from what had occurred between them'. The partition was valid as a parol partition, and Robert Pipes was precluded from any assertion of claim to “ Franklin,” as James was with reference to “ Anchorage.” It is not true that the agreement between the brothers before the resort to judicial proceedings was for an exchange of plantations, if the allotment should result contrary to their hopes. The agreement was that each should retain and hold, as his seventh part of the estate of the father, the plantation he was already in possession of in lieu or exchange, or as a substitute for any other place which might be allotted to him in the judicial proceeding. The only use of the word exchange is in the sense of substitution by the agreement of the parties of the plantation each was on, and was to have as his own for any other — 856 — which might by possibility be allotted by the commissioners, and does not involve the idea of a technical future exchange of plantations by mutual conveyance of title. There was no suggestion between the parties of any deed of exchange until after the allotment by commissioners. The parties evidently relied on their mutual agreement, which was to limit and control as between them the judicial allotment. The decree is reversed, and decree will be entered here perpetually enjoining the execution of the judgment of Buckner as against “ Franklin ” plantation.