Opinion
No. 36484.
May 26, 1947. Suggestion of Error Overruled November 10, 1947.
1. PARTITION.
Owners of a two-thirds undivided interest in fee in land could obtain a partition in kind of the land and thereby acquire a fee simple title to the part allotted to them, free from claims of one owning a life estate in the other one-third undivided interest in the land and his living children, who were contingent remaindermen, provided that life tenant and his children were made parties to the partition proceeding (Laws 1946, ch. 317, secs. 1, 2).
2. PARTITION.
Under statute requiring that all persons having an interest be made parties in partition proceeding, contingent remaindermen have such an "interest" as requires that they be made parties if they are to be bound by the proceeding (Laws 1946, ch. 317, secs. 1, 2).
3. PARTIES.
An owner of a life estate in an undivided one-third interest in land, although a party to partition suit, could not represent interest of living contingent remaindermen under doctrine of "virtual representation," since that doctrine applies only to such parties not now in being (Laws 1946, ch. 317, secs. 1, 2).
APPEAL from chancery court of Panola county. Hon. V.D. Rowe, Chancellor.
Herbert Holmes, of Senatobia, for appellant.
The bill of complaint filed in this cause could not be sustained because all necessary parties were not before the court, W.M. Copeland having a living son who is grown and married and he was not before the court at the time of the rendition of the decree.
Bland v. Bland, 105 Miss. 478, 484, 62 So. 641; Foster v. Jones (Miss.), 17 So. 893; Griffith's Mississippi Chancery Practice, Secs. 100-112.
Chapter 317 of the Laws of 1946 violates Section XIV of the Constitution of the State of Mississippi and Article I of the Fourteenth Amendment to the United States Constitution, which are referred to as the "due process" sections.
Donovan v. Vicksburg, 29 Miss. 247; Brown v. Board of Levee Commissioner, 50 Miss. 468; Albritton v. Winona, 181 Miss. 75, 178 So. 799; Holloway v. Jordan, 170 Miss. 99, 154 So. 340; Code of 1942, Sec. 962, as amended by Ch. 317, Laws of 1946; Constitution of 1890, Sec. XIV.
McClure Fant, of Sardis, for appellees.
A contingent remainderman is not a necessary party to a partition suit.
Laws of 1946, Ch. 317.
Chapter 317, Laws of 1946, is unconstitutional.
Alexander v. Richardson, 106 Miss. 517, 64 So. 217; Anderson v. Wilkins, 142 N.C. 154, 55 S.E. 272, 9 L.R.A. (N.S.) 1145; 33 Am. Jur. 530, Sec. 69, p. 532, Sec. 72.
The constitutionality of the 1946 act may also be sustained under the doctrine of virtual representation. It requires that the life tenant be made a party to a suit for a partition of the property; and, inasmuch as the life tenant's interest in obtaining a fair partition is identical to that of the contingent remaindermen, it may be said that the contingent remaindermen are virtually represented in the suit.
Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195, 198 Miss. 479, 23 So.2d 263, 401; 12 Am. Jur. 300, Sec. 605; 19 Am. Jur. 469, Sec. 11; 33 Am. Jur. 646, Sec. 180; 40 Am. Jur. 111, Secs. 132-3.
The Chancellor ordered a partition in kind of land in this proceeding. The appellant contends that the partition is void because of the failure of the appellees, complainants below, to join as a party to the bill Wayne Copeland and his children — at least, that the partition proceeding would not be binding upon Wayne Copeland and his children. In other words, the contention is that the parties to whom the land is allotted in this proceeding do not have a merchantable title thereto.
The question arises under these conditions: Mrs. S.P. White executed a will May 8, 1909. She departed this life February 9, 1925. Her will was duly probated. By this will she provided that her husband, John H. White, should receive the rents and income from the land in question, which is a section of land located in Panola County, Mississippi, during his natural life, but requiring him to spend as much as $300 per year for the maintenance and education of her grandson, Monroe White Copeland; that upon the death of her husband the land should be divided equally between her son John H. White, Jr., her daughter Rosalie White West, and her grandson Monroe White Copeland, to be held by them during their natural lives; that upon the death of each, his or her share should vest in his or her then existing bodily heirs, and if the decedent then had no bodily heirs, his or her share should vest in the survivor or survivors of the three named parties, and upon the death of such survivor or survivors his or her share, including that received from the deceased devisee, should vest in the bodily heirs of such decedent. The will makes no direction as to the disposition of the land in case all of the three named devisees should depart this life leaving no bodily heirs, but that is not pertinent to the question here involved.
John H. White, Sr., the husband, departed this life March 4, 1929.
On October 12, 1929, Mrs. West, J.H. White, Jr., and Monroe White Copeland agreed upon a division of the land, under which Copeland received the west one-third, Mrs. West the middle one-third, and White the east one-third thereof. Apparently these three persons took charge of their respective parts.
On October 8, 1936, Mrs. West conveyed her one-third to Copeland.
On July 31, 1942, J.H. White, Jr., departed this life leaving as his only bodily heir his daughter, Mrs. Mildred White Springfield.
Mrs. West died July 7, 1943, leaving as her bodily heirs six children. The above bodily heirs are the complainants in this bill, Mrs. Springfield claiming to be the owner of a one-third undivided interest in fee simple, and the six children of Mrs. West together claiming to be the owner of a one-third undivided interest in fee simple, in said Section of land.
They made Monroe White Copeland the only defendant to the bill, alleging that he owns a life estate in the other one-third undivided interest, the remainder upon his death to vest in the heir or heirs of his body in case he should then have such heir or heirs.
It is disclosed in the record that Monroe White Copeland now has one living heir, a son, Wayne Copeland, a married adult with children. The question is would this partition be binding upon Wayne Copeland should he survive his father, or, if he should predecease his father, would it be binding upon such of his now living children as might survive him.
Section 1, Chapter 317, page 500, Laws of Mississippi 1946, provides that tenants in common, having an estate in possession or right of possession and not in reversion or remainder, if such estate be not less than a term of five years, may obtain between themselves partition of lands, provided: "However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, remaindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands are made defendants if they do not join in the proceedings as complainants or petitioners."
The quoted provision first appears in the foregoing Act adopted in 1946.
Section 2 of said Act provides: "Any of the parties in interest, whether infants or adults, may institute proceedings for the partition of lands or for a partition sale thereof by decree of court as herein provided. All persons in interest must be made parties, except in cases where a part of said freehold is owned by persons owning a life estate therein or a life tenancy therein subject to the rights of remaindermen or reversioners, then in such event it shall only be necessary that the person or persons owning or claiming a life estate or life tenancy therein be made parties; . . ."
Construing these provisions together and applying them to the facts of the case at bar they mean that the complainants herein, who together own a two-thirds undivided interest in fee in the land in question, can obtain a partition in kind of said land and thereby acquire a fee simple title to the parts allotted to them, free from claims of Wayne Copeland and his living children, provided that he and such children are made parties to the proceeding. In other words, the interest of the contingent remaindermen would be limited to the parcel of land allotted in such proceeding to Monroe White Copeland. Conversely, if they are not made parties their interest in said section of land, if and when they should have the right of possession thereto, would not be affected. Their rights are vested now by the terms of the will; the only question is whether and when they will be entitled to the enjoyment thereof. That depends, as to Wayne Copeland, upon whether he survives his father, and, as to Wayne's children, upon whether he predeceases his father, and the children, or some of them, survive Monroe Copeland. The statute requires that all persons having an "interest" be made parties. Contingent remaindermen have such an interest as requires they be made parties if to be bound by the proceeding. 31 C.J.S., Estates, Sec. 72, page 91. The very purpose of the amendment to the statute was to require that known living contingent remaindermen be made parties to the proceeding.
Appellees invoke the doctrine of virtual representation. They say that Monroe White Copeland, being a party to the suit, represents the interest of all contingent remaindermen. That doctrine applies only to such parties not now in being. 33 Am. Jur., Section 180, p. 646.
It is urged by appellees that unless they can acquire by partition in kind a fee simple title to their respective parts of the land, free from the claims of contingent remaindermen, they cannot fully enjoy the fruits of their property, and it will be taken out of the channels of trade and commerce, thereby violating the public policy of the state. Such a partition can be had by making Wayne Copeland and his present living children parties to the proceeding. The doctrine of virtual representation takes care of possible yet unborn bodily heirs of both Monroe and Wayne Copeland. The statute requiring that all known living persons in interest be made parties and the doctrine of virtual representation as to unborn contingent remaindermen constitute a workable plan which protects the constitutional rights of all parties and yet admits of present enjoyment and disposition of fee simple owners of property in common with others owning a lesser interest therein. In other words, this statute and this doctrine protect the rights of Wayne Copeland and his now living children, as well as the possible future bodily heirs of Wayne Copeland and Monroe Copeland.
Reversed and remanded.