Nugent v. Powell
Nugent v. Powell
Opinion of the Court
delivered the opinion of the court.
Section 1847 of the Code of 1880 authorizes the institution of a suit in equity in any county where the property in controversy, or some part thereof, is situated, or in any county where the defendant or some necessary party defendant may reside or be found. This is a general statute governing the venue of suits in equity in all cases which are not controlled by specific and narrower statutory provisions. But by § 2553 of the code, it is expressly declared that partition of land “ may be made by decree of the chancery court of that county in which the lands, or some part thereof, sought to be divided are situated,” and by § 1833 provision is made for the institution of suits to cancel clouds upon the title of the real owner “ in the chancery court of the county in which the real estate may be situated.” Under the familiar rules of construction that the expression of one thing is the exclusion of all others, and that the words of a general statute are. restricted by those of a special one, these provisions control the venue of suits for partition and to remove clouds, and limit it to the county in which the lands or some part thereof are situated.
Complainants can add nothing to the strength of their position by framing their bill so as to exclude a prayer for partition in kind and seeking a sale of the land and a distribution of the proceeds of sale. On the facts stated they are tenants in common in equity with Powell, and as against him and those claiming under him, with notice of their equitable interest, the complainants are entitled to have relief to the extent of securing a conveyance of the legal title to them of their undivided half interest in the land, and of fixing a charge on Powell’s interest for the one-half of the expenditures made by them in protection of the common- estate; but in this controversy McNeill has no sort of interest, and it is only when the jurisdiction of the court is invoked to cancel his title to the homestead right asserted against both the complainants and Powell that he can be connected with the subject-matter of the suit.
If the suit had been instituted in the Chancery Court of Le Flore County for partition of the land, the court could not in that suit
The decree is affirmed in so far as the demurrer of McNeill was sustained and bill dismissed as to him, and reversed in so far as the bill was dismissed as to the other defendants.
Reference
- Full Case Name
- Nugent & McWillie v. J. R. Powell
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- 1. Chancery Practice. Suits for partition and to remove clouds. Venue. Code construed. Section 1847 of the Code of 1880, in relation to “Venue of Suits” in chancery, provides that “Suits respecting.real or personal property may be commenced in the chancery court of the county in which said property, or some part thereof, may be; and, in all cases,, suits may be brought in any county where the defendant or any necessary party may reside or be found.” But § 2553, in the chapter in relation to the partition of property, declares that partition of land “ may be made by decree of the chancery court of that county in which the land, or some part thereof, sought to be divided is situated.” And l 1833 provides for the institution of suits to cancel clouds upon the title to real estate “ in the chancery court of the county in which the real estate may be situated.” Section 1847, being a general statute, its provisions are restricted by 2553 and 1833, which control the venue of suits for partition or to remove clouds from titles and limit the same to the county in which the land or some part thereof is situated. 2. Chancery Practice. Suit for partition. Prayer of bill. Venue. And the rule of venue is the same, though the bill contain no prayer for partition in kind, but instead thereof seeks a sale of the land and a distribution of the proceeds of the sale. 3. Same. Partition and removal of clouds. Venue. Jurisdiction. Although a suit be not maintainable for the partition of land, or to remove clouds from the title thereof, when brought in a county where no part of the land lies, yet, if brought in the county where the defendant co-tenant resides, it may be maintained, in a proper cause, to the extent of compelling the defendant to convey to the complainant the legal title to his equitable interest in the common property, and of charging the defendant’s interest with his share of the expenditures made by the complainant for the benefit of the property. 4. Same. Bill for partition. PEolder of adverse title as a parly. Section 2576, Code 1880. Section 2576 of the Code of 1880 provides: “If the title of the complainant seeking partition, or sale of land for division of its proceeds, shall be controverted, it shall not be necessary for the court to dismiss the bill, or delay the suit for an action at law to try the title, but the question of title shall be tried and determined in said suit by the chancery court, which shall have power to determine all questions of title, or to remove clouds upon the title of any lands whereof partition is sought.” Under this provision, a tenant in common, whether his title be a legal or equitable one, cannot, by exhibiting a bill for partition against his co-tenant and the holder of a title or claim adverse to both of them (as that of a homestead exemption), draw the latter into the suit, and force the trial and determination of his title or claim, with the view of having the same cancelled, as a cloud upon the complainant’s title. •5. Same. Partition. Section 2576, Code 1880, construed. The purpose and effect of § 2576 of the Code of 1880 is to confer jurisdiction upon the chancery court-to settle all conflicting claims between proper parties to suits for “ partition, or sale of land for division of its proceeds.”