Alsobrook v. Eggleston

Cooper, J., delivered the opinion of the court. The effect of the decree'made upon the petition of Payne against the heirs at law of Alsobrook, for sale of the lands for partition, was to conclusively settle the equitable right of Alsobrook’s heirs to one-half of the lands therein described. There was no lawful execution of that decree by Davidson, the commissioner appointed to make the sale. He was required by law to make sale of the lands upon credit of six months, and to take bond with security from the purchaser in double the amount of the purchase-money, and it was -his [837] duty to make report of Ms action' at the next term of the court. But he substituted his own will for that of the law, of which the purchaser was bound to take notice, and received Confederate money as payment for the land, which he retained in his hands until after the overthrow of the Confederacy, and-then, and not till then, reported to the court his action in the premises, and brought into court the worthless funds. This report was promptly met by proper and just exceptions, after which no action was taken either on the report or the exceptions thereto. Counsel for appellee say that the exceptions were abandoned, but we find no evidence thereof in the record. The commissioner had no authority to receive the money, and, though it was paid to him, he held it- as the mere depositary of the purchaser. State v. Cox, 62 Miss., 786. Confirmation by the court, or by the act of the parties, was essential to give validity to the sale and conveyance. Henderson v. Herrod, 23 Miss., 434; Sanders v. Dowell, 7 Smed. & M., 206; Gowan v. Jones, 10 Ib., 164. The office of exceptions to a report of sale, is to prevent confirmation; and when a report of sale is made, and exceptions thereto are filed, and no further steps are taken, the inference is that the sale, and not the exception, is abandoned. There is no evidence of a confirmation in pais. The purchaser paid nothing for the land. He placed certain currency in the hands of Ms depositary, the commissioner, to be used for that purpose, but the owners of the land refused to receive it, and repudiated the sale. Eggleston, the purchaser, seems to have appreciated his condition, for, four years after the' commissioner’s sale, he purchased the undivided one-half interest of Payne in the land, and accepted a conveyance thereof from him, which conveyance was promptly recorded. The deed from the commissioner seems never to have been recorded, and, so far as complainants are shown to have known, he never claimed any interest thereunder, after their [838] exceptions were filed. "We find nothing in the record from which an affirmance by the parties could be inferred. There is no- sufficient evidence of an ouster of complainants from the land, and an adverse holding by Eggleston. His entry upon the land, and deadening one hundred acres of timber thereon, and building two cabins there, were before the exceptions tó the report bad been filed; and doubtless this action on his part was upon the expectation that the sale would be confirmed. But, three years after this, he recognized the title of- Payne to one-half of the land, and, inferentially, that of complainants to the other interest. After he had acquired Payne’s title, he was, in law, entitled to hold the land, and the presumption is that he held in recognition of the right of his co-tenants. Until notice was brought to them of the fact that their title was denied, they might rely upon the presumption that it was recognized. The lands are wild and unoccupied (except forty acres sold by Eggleston to one Wade, less than ten years before this suit was commenced), and payment of taxes and claim of qwnership was not sufficient evidence of an ouster, nor of adverse holding by Eggleston. The complainants were entitled to relief. The decree is therefore reversed and cause remanded.