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FRANCES JEAN DAVIS v. JOHN EARL DAVIS

MAY 13, 1987

FRANCES JEAN DAVIS
v.
JOHN EARL DAVIS



BEFORE WALKER, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This case presents the question whether the plaintiff in a partition action has presented enough evidence that she has an interest in the property sought to be partited so that she should survive a motion for summary judgment, the motion having been made on grounds that the establishment of an interest in the property is a necessary element of the Plaintiff's claim, failing which the claim must be dismissed.

 The Chancery Court granted the motion for summary judgment on the grounds asserted. For the reasons set forth below, we affirm.

 II.

 A.

 Prior to 1960, Frances Jean Davis and John Earl Davis were husband and wife. On February 1, 1960, Paul Montgomery conveyed to John Davis by warranty deed property believed by them to be the property which is the subject of the present proceeding, this property being there referred to as Lot No. 1 in Montgomery Subdivision in Tishomingo County, Mississippi. Thereafter, the Davises occupied the premises as their homestead. Nothing in the February 1, 1960, deed vested any legal interest in the property in Frances Jean Davis.

 There was one problem with the description of the property in the 1960 deed. The plat of the Montgomery Subdivision reflected two lots designated as Lot No. One. Apparently, this problem was of concern, for on January 20, 1965, Paul Montgomery and Floyd Montgomery executed a quitclaim deed purporting to re-convey the property to Frances Jean Davis and John E. Davis. As fate would have it, the quitclaim deed wholly failed to describe the property correctly.

 The parties continued to reside thereon for some twenty years. During that time at least two deeds of trust were placed thereon wherein both John Earl Davis and Frances Jean Davis were the grantors.

 On February 27, 1980, by final decree of the Chancery Court of Tishomingo County, Mississippi, the Davises were divorced. The decree reflects a contested divorce proceeding and, inter alia, contains a finding "that the former home of the parties hereto is in the name of John Davis and cannot and will not be disturbed by this court and will remain as it must his property."

 On September 30, 1981, Frances Jean Davis commenced the present partition action by filing her complaint in the Chancery Court of Tishomingo County, Mississippi. In that complaint she alleged that the property was owned jointly by herself and her former husband, with each owning a one-half interest. In due course, John Davis answered and alleged, inter alia, that Frances Davis had no interest in the property and that her claim, if any, was barred by res judicata, laches and estoppel.

 Belatedly, in September of 1984, John E. Davis moved the court for summary judgment, denying again that Frances had an interest in the property and reasserting his defenses of res judicata, laches and estoppel. The matter came on for hearing at which time the Chancery Court took live testimony from John Davis and Frances Davis and at the conclusion of which he dismissed the complaint. Specifically, the court stated:

 This is a suit for a partition of property, a proceeding having as an essential element and a prerequisite the ownership of an interest in the property. It is incumbent upon Ms. Davis to establish ownership. She did not do so.

 Counsel for Frances Davis requested a specific ruling on her claim of an interest in the property by virtue of adverse ...


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