Claughton v. Claughton

delivered the opinion of the court.

The objection that the chancery court did not have jurisdiction to try the disputed claim of title between the parties, because the defendant asserted title in himself, and denied the claim of the complainants, is without force, and receives no support from either case cited for it. On the contrary, it was distinctly announced in Nugent v. Powell, 63 Miss., 99, that the statute (§2576 of the code of 1880) authorized the court to settle all the conflicting claims of such parties as were properly joined as co-tenants, but it is not allowable *387to bring into a suit between co-tenants one who is not alleged to be such; and, in Cooper v. Fox, 67 Miss., 237, the same rule was announced — i. e., “ Only those having an interest in the result sought — the partition — can be made parties.” The necessai’y implication of this is, that all having an interest in the partition sought are to be parties. To hold otherwise would nullify the statute, and compel a resort to law to try title in every case in which the defendant set up title in himself, a result the statute was designed to prevent. The court has power to decree partition between co-tenants, and must be able to determine whether those alleged to be are such or not, otherwise it would be balked in every instance of dispute as to the existence of this relation between the parties. It has full power to adjust all claims and administer appropriate relief in partition suits.between all proper parties, and does not lose this power by the assertion of a party that he is not a co-tenant. That is the essential matter, without which a decree for partition cannot be made; and, when put •in issue, it must be decided by the court in which the suit is pending.

The decree is clearly right. The case might have been set for hearing on the bill and answer, and a decree for partition would have followed. No testimony was needed. The claim of title by the appellant on the facts stated by hiá answer is without any — the least — support. The title was, by his fraudulent act, vested securely, as against him, in his wife, who lived and died the owner, never having conveyed it. Idis claim by recognition and acquiescence of his wife and by adverse possession is frivolous. His wife was in possession with him, and the title was in her, and the mixed or joint possession was referable to the title. It was the possession of the wife, and the business done by him with this property of the wife, and now claimed as evidence of title in him by consent of the wife, was, under § 1177 of the code of 1880, her business, done by him as her agent.

' Affirmed.