Farmer v. Allen

Whitfield, C. J., delivered the opinion of the court. In 1886 appellee filed a petition in the chancery court of Lee county for the sale, for division of proceeds, of certain land, properly described in the petition as in sec. 34; the said appellee owning’ one-fourth, and the appellants two-fotirths, of said land. At the November term, 1886, a decree was made ordering the sale of the land, describing it as “the property described in the bill of complaint — to wit,” but the words “to wit” were followed by describing the land as in sec. 31, and it was advertised and sold as in sec. 31. The sale was, reported to, and confirmed by, the court as being in sec. 31, and the proceeds were ordered distributed, and were distrib-' uted in accordance with the' decree, and a report of that made ,and confirmed by the court, the whole suit being thus carried through and conducted to the usual, regular conclusion. At [678] the sale one J. F. Booth became the purchaser, entered immediately into possession of. the land, and received a deed describing it as in sec. 31, and has remained in adverse possession of it ever since. Nobody ever dreamed of any mistake as to the description of the land having been made until June, 1904, when a petition was filed in the chancery court of Lee county by the defendants in that suit (appellants here), reciting all that had taken place and giving notice to the complainant in the original case (J. If. Allen) that “it was the purpose of these -petitioners to proceed with said case to final determination,” and praying that, on final hearing, the said original suit should be revived and the said land in sec. 34 sold, and a division of proceeds made between J. ]VL Allen and the defendants. Allen demurred to the petition on the ground, chiefly, that the said original suit had long since been fully concluded and terminated, and was not therefore in any sense a pending suit, and also on the ground that Booth, the purchaser, was not made a party defendant to the petition, and that the appellants were estopped by the proceedings in the original case to question the sale without making the purchaser a party and offering to do equity by paying back the purchase money. This demurrer was sustained. Whereupon the appellants (defendants to the original proceedings) amended their petition. This .amended petition was met by a motion on the part of Allen to dismiss the cause, if it could be considered as still pending, for the reason that he was in no way interested in the said land, and did not desire to prosecute the suit any further, or to be responsible for costs therein, being fully satisfied with the proceedings had in the original cause, and on the further ground that, if the defendants wished to proceed with litigation touching the said property, they should file an original bill. This motion was sustained and the whole proceeding dismissed without prejudice to any right defendants might have to file an original bill. Thereupon appellants appealed to “this court from the decree sustaining said demurrer and the decree sus [679] taming said motion, and- also appealed from the original decrees made in 1886 and 1887. As to these two last decrees, appellee interposes the statute of limitations, and the appellants have made a motion to strike out said pleas on the ground that this court is without power to entertain such pleas. Dealing first with the motion, we have to say that it must be overruled. The pleas in bar of the appeals from the decrees in 1886 and 1887 were properly filed in this court. See Parker v. Johnson, 47 Miss., 632; Hendricks v. Pugh, 57 Miss., 157; and Finney v. Speed, 71 Miss., 32 (14 South. Rep., 465). This is a unique case. It stands alone, “like Adam’s recollection of his fall.” The record shows not only that the appellee, like Shakespeare’s greatest creature, was not only “witty himself, but the occasion of wit in others,” but it also discloses the fact that he has humor of such pungent and vital quality that it can impart itself to the dry record of a partition suit, and, there embalmed, like the seed grain wrapped in the foldings of the mummy, survive for twenty years, to bloom and sparkle anew for “the gayety of nations!” Defendants in the original proceedings want the cotillon of the long ago resumed, and insist that Mr. Allen shall dance to them as his partners. Mr. Allen protests, insisting that the dance was long since finally concluded, its flowers faded, its music hushed, and that he will not be a party to a representation, in such ghostly fashion, of a drama long since acted. He says that the land was sold fairly, that the purchaser got the land really described in the bill and intended to be sold, and that he and the defendants got the purchase money of the land, and he insists upon the .preservation of the status quo, and finds it impossible to derive any satisfaction in further reflection upon money received and long since spent. But to “leave this sharp encounter of our wits, and fall somewhat into a slower method,” we observe, touching the legal points made: First, that the fundamental mistake made by the appellants in this proceeding is in supposing that the original suit is still a pending case. It is not [680] a pending case at all. It is wholly unlike the case of Tucker v. Wilson, 68 Miss., 691 (9 South. Rep., 898), which last was a pending case at the time of that decision. There the case had been reversed in the supreme court in 1873; but as the costs had not been paid, the mandate never was sent to the court below, and nothing was ever done in the real case for fifteen years thereafter. The court held in Tucker v. Wilson that in the attitude of affairs’ the cause could be proceeded with from the point at which it was left when the court had reversed it fifteen years before. Manifestly, there was there a case still pending, and requiring to be proceeded with, after reversal, on the return of the mandate to the court below. Here the court did proceed with and did finally terminate the case in the chancery court of Lee county. If, as is insisted, in one view, the decree was void because the land was described in one part of the decree as in sec. 31, when it was in fact in sec. 34, then all appellants had to do was to ignore the void proceeding or to appeal from the decree; but we think that at the most the decree Ayas erroneous, and not A'oid. The land, the subject-matter of the litigation, Avas properly described in the bill and in the decree, in one part of it, Avhich said that the commissioner should sell the land described in the bill; the court had complete jurisdiction both of the subject matter and of the parties; every step taken Avas in strict conformity with the law; and the mere clerical misprision in writing “31” for “34” was easily correctible by the record itself. But if there had been an appeal prosecuted from the final decree to this court, the judgment here would simply haA^e been reversing the case, simply for this error, and rendering the same decree here, with the error corrected. Manifestly, it Avas the duty of the appellants to have-appealed from these merely erroneous decrees within the time allowed by law. That they did not do, and the appeals from the decrees rendered in 1886 and 1887 have long since been barred. We therefore sustain the pleas filed in bar of these two appeals, and they are hereby dismissed. [681] As to the decree sustaining the demurrer and sustaining- the motion t-o dismiss the proceedings, we say: First — That, since the case was not a pending one, but a concluded one, the demurrer was properly sustained. Second — That, since the dismissal of the case was without prejudice'to any rights the appellants may have to file a bill on their own behalf, it cannot be said the chancellor abused his discretion. We think he properly sustained the motion. This petition simply prayed that the complainant should be required to proceed against them, the defendants, as if the suit had never been terminated, and that the land should be résold, and the proceeds a second time divided between Mr. Allen and appellants. Allen demurred, saying’ that the land had been sold once — -this very land; that the purchaser had gone into possession, and had had it for twenty years; that he had got his part of the purchase money, and the appellants theirs; and that that .ought to be the end of the matter. Logically, morally, and legally, we think that the right attitude; wherefore The last two decrees are affirmed.