From Casetext: Smarter Legal Research

Kittrell v. O'Flynn

Supreme Court of Mississippi, In Banc
Jan 26, 1948
33 So. 2d 628 (Miss. 1948)

Opinion

No. 36655.

January 26, 1948.

1. STATUTES.

Decision construing partition statute became in effect a part of the statute when it was re-enacted in substantially the same language (Code 1942, sec. 977).

2. PARTITION.

Under statute respecting effect of decree confirming partition all questions that could be adequately raised by appeal or by bill of review or by a repartition must be raised in the manner and within time specified by the statute (Code 1942, secs. 752, 977, 982).

3. EQUITY.

Attack on partition decree on ground that next friend of minor litigant became purchaser at sale and that such fact appeared on face of record could be made the subject matter of bill of review limited by statute to two years after disability of minor was removed, and therefore decree was not subject to attack on that ground, after disability of minority had been removed more than two years (Code 1942, secs. 752, 977, 982).

APPEAL from the Chancery Court of Jones County.

Welch, Cooper Welch, of Laurel, Stone Wells and Irwin W. Coleman, both of Jackson, and Archie D. Gray, of Houston, Tex., for appellants.

The appellee was precluded from maintaining his suit because it was not filed within two years after he became twenty-one years of age.

Memphis Stone Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315; Neely v. Craig, 162 Miss. 712, 139 So. 835; Martin v. Gilleyler, 70 Miss. 324, 12 So. 254; Russell v. Federal Land Bank, 180 Miss. 55, 176 So. 737; Forest Product Manufacturing Co. v. Buckley, 107 Miss. 897, 66 So. 279; Smith v. Strickland, 139 Miss. 1, 103 So. 782; Dendy v. Commercial Bank Trust Co., 143 Miss. 56, 108 So. 274; Code of 1906, Sec. 3122; Griffith's Mississippi Chancery Practice, Sec. 158, Note 14; 37 C.J. 743, Sec. 60.

Complainant's suit constitutes a collateral attack upon a final decree of a court of competent jurisdiction, which court had full jurisdiction of the parties and subject matter, and therefore should be dismissed.

Memphis Stone Gravel Co. v. Archer, supra; Smith v. Strickland, supra; Moore v. Ware, 51 Miss. 206; Alabama V.R. Co. v. Thomas, 86 Miss. 27, 38 So. 770; Cocks v. Simmons, 57 Miss. 183; 34 C.J. 508, Sec. 810, p. 555, Sec. 856; 31 Am. Jur. 177, Sec. 577, p. 181, Sec. 583.

Complainant is barred by laches from maintaining this suit.

Vanlandingham v. Meridian Creek Drainage District, 191 Miss. 345, 2 So.2d 591; Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 10 So.2d 346; Kelso v. Robinson, 172 Miss. 828, 161 So. 135; Jones v. Crawford, 201 Miss. 791, 30 So.2d 513; Terrell v. Weymouth, 32 Fla. 255, 13 So. 429, 37 Am. St. Rep. 94; Brazee v. Schofield, 124 U.S. 495, 8 S.Ct. 604, 31 L.Ed. 484; 40 Am. Jur. 63, Sec. 74, p. 111, Sec. 131.

Appellee could not adopt and ratify the unauthorized act of Mrs. Blanche O. Kopcke in filing this action so as to toll the statutes of limitation.

Love v. Mississippi Cottonseed Products Co., 161 Miss. 704, 137 So. 739; City of Natchez v. Craig, 191 Miss. 567, 3 So.2d 837; Dowd v. Morgan, 23 Miss. 587; Weems v. Vowell, 122 Miss. 342, 84 So. 249; Hirsch Bros. Co. v. R.E. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1; Griffith's Mississippi Chancery Practice, Secs. 29-A, 30, 54, 58, 128, 564.

Collins Collins, of Laurel, for appellee.

The next friend had no right to purchase the land for himself, and the sale to him was voidable at the appellee's election.

Memphis Stone Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Brandau v. Greer, 95 Miss. 100, 48 So. 519, 21 Ann. Cas. 1118; Neely v. Craig, 162 Miss. 712, 139 So. 835; Smith et al. v. Strickland et al., 139 Miss. 1, 103 So. 782; Johns v. Harper, 61 Miss. 142; Barker v. Jackson, 90 Miss. 621, 44 So. 34; McGee v. Holmes, 63 Miss. 50; Pool v. Ellis, 64 Miss. 555, 1 So. 725; Jonas v. Flanniken, 69 Miss. 577, 11 So. 319; Hoskins v. Illinois Cent. R. Co., 78 Miss. 768, 29 So. 518, 84 Am. St. Rep. 644; Cole v. Moore, 34 Ark. 584; 24 Cyc. 29.

Laches does not apply where a statute fixes the time within which a suit may be brought.

Argued orally by W.S. Welch, for appellants.


Claiming to be the owner as a tenant in common of an undivided one-sixteenth interest in the land described in his bill, appellee, on June 25, 1945, began his suit for a partition. Appellants answered and set up the fact that appellee's interest had already been sold under a previous partition proceeding, wherein the sale had been confirmed on November 3, 1924, and that this former decree had become conclusive and final as to appellee under Section 977, Code 1942, the further fact being that appellee was approximately twenty-nine years old when he instituted the present suit.

The cited section reads as follows: "Section 977. Final decree and decree of confirmation. — The final decree of the chancery court in partition proceedings shall ascertain and settle the rights of all parties; and it, and the decree confirming the partition, shall constitute an instrument of evidence in all questions as to the title of the lands which may be the subject of the decree, in all courts, and shall be conclusive as to the rights of all parties to the suit, and subject to appeals and bills of review, as in other suits, and to a repartition as provided."

By the express language of that statute the final decree and the decree confirming the partition is conclusive against all parties save as to appeals, bills of review and a repartition. It was definitely so held in Martin v. Gilleylen, 70 Miss. 324, 328, 12 So. 254. That decision became in effect a part of the statute when it was reenacted in substantially the same language by Section 3536, Code 1906, and by its retention in all subsequent codes. Whatever else may be said of that statute, it must certainly be said and held that all questions which could be adequately raised by appeal or by a bill of review or by a repartition must be raised in the manner and within the time specified by the particular statute, else the statute would be practically stripped of any effective operation at all.

The repartition mentioned in the statute is that provided by Section 982, Code 1942, but this is limited to one year next after the first partition. No appeal was here taken, and appellee did not file a bill of review within two years next after he reached the age of twenty-one years. Section 752, Code 1942.

Appellee contends that the sale made in 1924 was void for the reason that the minor owners in the original partition, of whom appellee was one, were made parties complainant therein by their mother, as their next friend, and that she became and was the purchaser at the partition sale; and the sale being void for that reason, as appellee contends, he would not be barred except for the ten-year statute of adverse possession, which had not run its full course when he instituted the suit now before us.

We held in Memphis Stone Gravel Co. v. Archer, 120 Miss. 453, 82 So. 315, that the purchase at a partition sale by a next friend made the sale voidable, but that the sale would not for that reason be void; which means, of course, that if the minor elects for the stated reason to avoid it and to enforce his election by any proceedings on the offensive, he must do so within the time allowed him to complain of any other error or irregularity appearing on the face of the record of the partition proceedings, which is within two years after attaining majority.

Appellee relies principally on Smith v. Strickland, 139 Miss. 1, 103 So. 782. What is now Section 977, Code 1942, was not one of those which the court there said had no application. The persons who were minors when the partition proceedings were had, were defendants in the Smith v. Strickland case and all that was necessary to have been said in it was "that the purpose of statutes of limitation is to bar actions and not to suppress or deny matters of defense whether legal or equitable; and it is a general rule that such statutes are not applicable to defenses but apply only where affirmative relief is sought." 34 Am. Jur., pp. 57, 58.

The sole and only attack here made on the first partition suit is that the next friend became the purchaser at the sale and this appears on the face of the record thereof. Any attack on that ground is, therefore, the subject matter of a bill of review, limited by said Section 977, Code 1942, to two years after the disability of minority has been removed. Compare Brown v. Wesson, 114 Miss. 216, 74 So. 831. We are not here concerned with, nor are we discussing or deciding, a case where under the broad principles of equity jurisprudence an attack may be made by an original general bill upon any decree or judgment whether in equity or in law, but we are dealing solely with a case, as is this case, wherein the attack is for that which is properly the subject matter of a bill of review, — whatever may be the name by which the pleading is called, — and we repeat that under the partition statute this must be done if done at all within the terms of the statute; and it was not done here.

Reversed, and decree here for appellants.


Summaries of

Kittrell v. O'Flynn

Supreme Court of Mississippi, In Banc
Jan 26, 1948
33 So. 2d 628 (Miss. 1948)
Case details for

Kittrell v. O'Flynn

Case Details

Full title:KITTRELL et al. v. O'FLYNN

Court:Supreme Court of Mississippi, In Banc

Date published: Jan 26, 1948

Citations

33 So. 2d 628 (Miss. 1948)
33 So. 2d 628

Citing Cases

Winder v. State

Also see In re Estate of Kelly, 193 So.2d 575, 578 (Miss. 1967); Kittrell v. O'Flynn, 203 Miss. 164, 33 So.2d…

Boyd v. Entrekin

Morse Morse, for appellees. I. Appellants are barred by Sec. 752 of Code 1942. Secs. 752, 1388 Code 1942;…