The clarion., 1885-11-25
SUPREME COURT CASES.
7eported for The Cisrion, by n. n. Parker
Htterneyat-law, jackson, Miss
october Terrn--Ise5.
NUeEHT & McWILLIA

~
v.
J. E. POWELL EFT AL.
From the Chancery Court of Madison
county. E. Il. Peyton, Chancellor.
rhancery practice. Teaue ef suits for
partition. etc folder Of Gdrerse title as
party to suit for partition.
COOPER, C. J.
Complainants filed their bin against
| Powell, Mcneil, and others, alleging
/ tenancy in common of themselves and
| Powell in certain lands in Letiore
county, and praying that an account be
taken between them, and that the lands
| be sold, aud the proceeds distributed IN
such mann-r as the result OF the account
| ing might show to be proper; and pray
| itg also that the claim of Mcneil to
a particular tract of the land, as his
homessead, be cancelled. A demurrer
| of Mcneil 70 the bill was sustained,
and the bill dismissed.
Code Sc. 1917 authorizes the insiitu-
ton OF 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
| ne found. This Is a general statute
governing the venue of suits in equity In
| All cases which are rot controlled by
,peciiic and narrower statutory prOvis-
IONS. But by See. 1868 it is expressly
declared that suits f)r partition of land
"may be made by decree of the chancery
court of that county in which the
ands, or some part thereof. sought to be
divided, are situated :" and by Sec. 1888
provision is made for the institution OF
suits 10 cancel clouds upon the title OF
the real owner lin the chanCery court
D of the county in which the real estate
: NAV be situated" Under the familiar
rules of construction that the expression
of one thing is the exclusion of all
Z others, ana shat the words of a general
statute are restricted by those of q
special one, these provisions control the
venue of suiIs for partition and t.
t remove clouds, aud limit it 10 the
r co rnty in which the lands or some part
thereof are situated
Complainants can add nothing 20 the
strength of their position by framing
r their bill So a. to exclude a prsver fnl
o partition In kind, and seeking a sale anC
y d:stributi tion. On the facts stated, they
" are tenants in common in equity Will
Powell, and, as against him and thos'
le claiming under him, ae entitled Il
have relief to the extent of securing
: conveyance to them of the legal title o
their undivided half interest in TIL,
land, and of fixing charge on Powell,
D interest for one-half of the expenditure
made by them in protection of the com
= mon estate. But in this cOntrovers,
. McNeill has no sort of interest, and it i
&, only when the jurisdiction of the cour
is invoked 10 cancel his title to th'
D homestead right asserted AGAINST boil
:, the complainants and Powell that h
:" ian be connected with the subject-mat
ter of the suit.
~ II the suit had been instituted in th
chancery court of Lehore county fo
!. partition of the land, the court coui,
not in that suit have determined th
validity of McNeiil's claim to the home
1" stead exemption; for Mcneil either ha
= no interest in the land. or, if he has q
ho interest, it is that of sole owner of
a distinct part, and not of tenant i
: common with Powell. Powell's remed
- is ample and complete by ejectment a
"A law, aud he canuot resort to court q
ev equity; nor can the complainant
40 because their interest is an equitahl
one as against Powell, draw into a cour
~ of equity Men ellis legal title. 1t is
~ mistake to assume that Code Sectio
er 1913 authorizes a tenant in commo
A.. with another to exhibit his bill agains
j. his co-tenant and, as an incident ther,
TO, to join all parties claiming adversel
=, 70 both. The purpose aud effect of tina
/ provision is to give to he court, bavin
A., jurisdiction over proper parties, powe
OF to settle all the conflicting claims G
he such parties without suspending the sui
ng to await the result of an action at La
to settle legal titles, or of an indeper
A. dent suit in equity to cancel clou
i, upon the title; but it is not admissibl
a, under it to join the holders of advers
od Titles as parties defendant
an The decree is affirmed in so far as tn
o. demurrer of McNeill was sustained, an
in the hill dismissed as to him; and re
ol far. versed in so a8 the bill was dismisse
as to the other defendants.
no Nugent & Melville. pro Sc.
y. Frank Johnston, contra.