The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1861-04-19
Thomas Hassam ct al.
VS..
James L. DaY. ct al.

VS.. 1870.
James L. Day, ct al.
This bill was filed by the plaintiffs in
error for q partition Of certain lands n
which they claim joint interest with the
defendants.
It sets forth the tltle Of the comptains
ants, and shows that a partition Of the
premises had been made between the de-
PENDANTS by petition and proceedings in
the Probate Court, in which the rights and
interest of the complainants were not no.
ticed and were wholly disregarded. These
proceedings are alleged to have been
fraudulently conducted as to the COM
plainants and to be unjust and illegal !;
and the prayer is that the partition be set
aside, and partition be made giving to
the complainants their portion OF the pre-
misses.
The answers of two of the defendants,
principally interested in the property, de-
ny the title of the complainants, set up
their own titles and aver that the parti-
ton was fairly and legally made. and
they claim by virtue of adverse possession
against the complainants and in virtue OF
the partition which was made before the
legal title of the cOmplainants was ac-
quired.
The case was submitted on final hear
ing in the court below upon the plead
ings and proofs; but at whose instance
does not appear by the record. There is
very little proof touching the material
question of the title of the complainants.
and upon the controverted point whether
they were entitled either at lay or in
equity to the interest in the lands claim
ed in the bill. 1t is quite clear, and in
deed it appears to be admitted by the
counsel for the plaintiff in error, that
their legal title is not fully established.
But it is insisted that the bill should have
been retained, and the complainants al
lowed to establish their title at law. How
ever this may be if the complainants had
taken that course in the court below il
cannot avail them here and in the pres
ant attitude of the case.
The case was submitted for final hear
ing upon its merits. No application wa
made to retain the bill until the title OF
the complainants could be determined a
law. 1t was submitted for final disposi
ton as it was presented; and the question
was, whether the compliments had made
a case entitliDg them to have the previou-
partition set aside and new Partition
made.
1t is we'll settled that equity will MOI
decree partition unless the titles of both
parties are clear. Garrett VS. White,
IredelI Eq. 10; Wilkin VS.. Willxin, John.
Ch. 3. For partition cannot be deereed
except where the titles of both parties are
clear. Much less could prior partition.
made in behalf of one party, who is ad-
mitted to have clear title, be set aside
at the instance of another party claiming
q doubtful and controverted title.
As the case was presented it was sub
mitted for final decree, the compliments
claiming decree for partition. II is man
ifest from the nature of the defences sci
up to the complainant's title, that tn
court would not have been justified in
granIiSas. tt.at relief "a the seese was pre-.
sented and as i was submitted Tor tlIl1
purpose, It was proper for the court t.
deny the relief; and, there being no ap-
plication for leave to establish the com
plainant's title at law, to dismiss the bill.
Upon this view of the case, the decree
must be affirmed.
HANDY,