Board of Levee Commissioners v. Nelms

Oalhoon, J., delivered the opinion of the court. By Mrs. Dancy’s will Hamby took an undivided half interest in fee in a tract of land, a part of a strip of which is the subject of this litigation. The other half went, under the same will, to Eben Nelms for life, with remainder in fee to appellees. The testator, Mrs. Dancy, died in 1894. On July 20, 1896, Eben Nelms, the life tenant of the half interest, and Hamby, the owner in fee simple of the other half, sold at a valuation of $50 per acre, to the board, for levee purposes, and conveyed to it by a conveyance purporting to carry the fee-simple title to the whole of the strip. Afterwards, on September 19, 1896, Hamby conveyed his half interest in fee in the whole tract to Fulmer, but excepted the strip from his warranty. Afterwards, on June 23, 1897, Fulmer, the owner of half in fee, and Eben Nelms, the owner of the life estate in the other half, and the appellees, the remaindermen in fee, all joined in a partition deed of the whole, tract, by which the part of the strip in controversy, containing 15 72-100 acres, was allotted to Eben Nelms and the remaindermen, and the rest of the strip fell, by the allotment, to Fulmer. Eben Nelms died July 16, 1902, six years, less four days, from the date of the conveyance by him and Hamby to the levee board. Then, within a month, the remaindermen, appellees here, commenced this [645] proceeding under the eminent domain acts of February 7, 1894 (Laws 1894, p. 95, ch. 85), and May 18, 1897 (Laws 1897, p. 23, ch. 19). The position of the board that it is entitled to the half interest of Hamby in the whole strip is untenable. "When he and Eben Nelms, the life tenant, conveyed to the board, the conveyance was subject to any ascertainment of the specific shares by partition between the owners of the fee. The deed was not void, 'but voidable by the remaindermen not parties to it. Kenoye v. Brown, 82 Miss., 607 (s. c., 35 South., 163); Richardson v. Miller, 48 Miss., 335. When the board took and expropriated the strip at a conventional price of $50 per acre, it should have had the remaindermen join in the conveyance; otherwise, it is liable to them for the value of their allotment on partition, less the value of Eben Nelms’ life estate, with legal interest on the balance; and, by agreement, the value was $50 per acre. Callicott v. Parks, 58 Miss., 528. The point of inquiry here is the value of the interest of the remaindermen in the property when expropriated. This has been manifestly found, practically, and we do not stop to notice whether there was or was not error below as to evidence admitted or excluded, or instructions. By some miscalculation the verdict is for $16.93 too much on the proper basis of estimate. It should have been for $831.32 instead of $848.25, and, as appellees offer to remit the $16.93, we affirm the judgment for $831.32 at costs of appellant. Affirmed.