BEFORE ROY NOBLE LEE, HAWKINS AND PRATHER
HAWKINS, JUSTICE, FOR THE COURT:
The heirs of Mary M. Hussey appeal from a judgment of the chancery court of Itawamba County finding that, following the death of the grantor life tenant, an ouster was required by her, as grantee, against the remaindermen before she could establish title by adverse possession; and that, moreover, they failed to establish title in Mary by adverse possession.
They also appeal the directing of a sale at public outcry rather than partiting the land in kind between all the heirs.
We find the chancellor was correct in his determination both that an ouster was necessary, and further that the requirements of adverse possession were not shown in any event under the facts of this case. We affirm the decree as to ownership.
We also find the chancellor erred in decreeing a sale at public outcry, and that a hearing should be held to determine if the land may be fairly partited in kind under the statute. On partition we reverse and remand.
On November 16, 1915, C.C. Hussey, Sr., conveyed a life estate to his son C.C. Hussey, Jr., to four tracts of land, three in Itawamba and one in Lee County, totaling slightly over 200 acres. *fn1
The body of the deed recited:
In consideration of Love and affection I have for my Son, I convey and warrant to C.C. Hussey, Jr. - during his Natural life and at his death to the children of his body, if any and in case of default of children at his death, then to revert to my heirs at law.
This was the father's method of conveying his property to his children and grandchildren. *fn2
C.C. Hussey, Jr., was either then married to, or subsequently married Mary Elgis Hussey (also named Mary M. Hussey) and six children were born of this marriage. For ease of reading this opinion all these descendants will be referred to as" Mary's children. "*fn3
C.C., Jr., and Mary lived together until 1942, when they separated and he moved to Arkansas. Mary obtained a divorce from him in the chancery court of Lee County on January 15, 1947.
C.C., Jr., lost no time acquiring a new family. He had five children by Willie Louise Hare Hussey (also known as Ruth Hare Hussey). Three of these children were born before his divorce from Mary. *fn4 For ease of reading, this second set of children will be referred to as" Ruth's children. "They were raised in Arkansas, and apparently had no social or family association with Mary's children.
C.C., Jr., entered into a bigamous marriage with Ruth on May 19, 1945. Ruth obtained a divorce from him in Arkansas on April 19, 1963, at which time she was awarded custody of the children. Martha Hussey Wagner testified in the trial of this case ...