DISSENTING OPINION. In my manner of thinking the opinion of a majority of my brethren is not only contrary to correct rules of law and equity but works grievous injustice. My conclusion is based upon this reasoning:
1. The acre of land in controversy was misdescribed by beginning 105 feet west of the southwest instead of the northwest corner of land owned by V.T. Lenoir. The remainder of the description is exactly the same. The opinion holds that Section 2315, Code of 1930, has no application where the land sold is misdescribed. That conclusion is reached, as I understand the opinion, by assuming that the land sold can be identified only by the erroneous description. That takes the subject by the wrong handle. It is not the misdescribed property which is sold, but the property sold is misdescribed. Suppose no property is described, which is sometimes the case, then what is the situation? The property sold in this case was that which all the parties knew and had in mind and which was delivered by the commissioner to the purchaser and which the purchaser actually received and thereafter possessed and used. All the decrees and documents describe this tract of about three acres as land *Page 517 belonging to Mrs. R.A. Spencer when she died March 5, 1931, and apparently it was the only land she did own. Her administrator sold it to pay her debts and funeral expenses. It was sold in January, 1934. The commissioner's deed is dated March 30, 1934. Mrs. Spencer left surviving her seven children, her only heirs at law. They were all adults and parties to that proceeding, including Mrs. Cusimano and Mrs. Kirkland. The sale was by agreement of all concerned. The property was delivered by the commissioner to Mr. J.C. Spencer, the purchaser. He paid the purchase price. He went into possession and has been in the sole and exclusive possession of the two acres, and he and his grantee, Craft, have been in such possession of the one acre in controversy, since that time.
Whether erroneously described land is within said section has not been decided by this court, but in all other situations coming before the court this section has been liberally construed to effectuate its purpose. There is no question of good faith or payment of the purchase money here. The section was meant to cure all defects, no matter from what cause, whether before or after decree, unless suit is brought within two years after the purchaser has taken possession under such sale. Morgan v. Hazlehurst Lodge, 53 Miss. 665. It applies even though the court is without jurisdiction to appoint the guardian who made the sale. Hall v. Wells, 54 Miss. 289; Jeffries v. Dowdle, 61 Miss. 504. And even if notice is not given to defendants. Summers v. Brady, 56 Miss. 10. It applies where the sale is not made in conformity to the Constitution. Bradley v. Villere, 66 Miss. 399, 6 So. 208; and where the chancery court is without jurisdiction to make the order of sale. Moores v. Flurry, 87 Miss. 707, 40 So. 226. Where the chancellor has jurisdiction of minor heirs and the subject matter is a petition of an administratrix to sell land, defects in process and insufficiency in time of sale do not prevent application of this section. Neely et al. v. Craig et al., 162 Miss. 712, 139 So. 835. The statute is *Page 518 remedial and designed especially to cure defects in probate sales by executors, administrators and guardians. Hubbard v. Massey et al., 192 Miss. 95, 4 So.2d 230, 494. I can see no good reason why it should not apply where the sale is in good faith and the purchase price paid and the purchaser is placed in possession of the lands and so remains for the time required by the statute merely because the land sold is erroneously described.
If this section is to be thus limited in its application it appears to be the only statute in the Code of 1930, de-designed to establish and quiet title to real property by adverse possession which is so limited. Section 2285, actions concerning land to be brought within ten years, is not so limited. Greer v. Pickett, 127 Miss. 739, 90 So. 449; Schuler v. McGee, 127 Miss. 873, 90 So. 713; Evans v. Harrison, 130 Miss. 157, 93 So. 737. By Section 2287, providing for the vesting of title by actual adverse possession for ten years, possession of part of an adjoining tract, under conditions meeting the requirements of the statute, confers title on claimant to such part although claimed through the mistaken belief it was within the calls of claimant's deed. Jones v. Gaddis, 67 Miss. 761, 7 So. 489.
2. A part of the purchase price of this land remained in the hands of the administrator after payment of the debts and funeral expenses of Mrs. Spencer. This he paid to the heirs, including appellants, according to their respective interests. These appellants well knew this money was for the purchase price of this small tract belonging to their mother. They actively participated in and agreed to the sale. In their cross bill they say appellees have had the sole and exclusive possession thereof since the sale. They make no offer to return the money. On the other hand, they assert, by cross-bill, that they and Spencer and Craft are tenants in common thereof and they ask for a sale and division of proceeds between the common owners, and, in addition, ask that J.C. Spencer and Craft be charged with rents on this acre for their *Page 519 benefit. "It has been held repeatedly in Mississippi, and it is settled law here, that the acceptance of the distributive share of the purchase money realized on a sale for partition under a void decree estops." Keel v. Jones, 93 Miss. 244, 47 So. 385, and authorities therein cited, especially Willie v. Brooks, 45 Miss. 542.
3. As said in the majority opinion, it cannot be known with certainty from this record whether any improvements have been made upon the lot in question, and whether the doctrine of estoppel announced in Evans v. Forstall, 58 Miss. 30; Wynne v. Mason, 72 Miss. 424, 18 So. 422; Kelso v. Robinson, 172 Miss. 828,161 So. 135; Frederic v. Mayers, 89 Miss. 127, 43 So. 677, and like cases, applies. This can be determined on a retrial of the cause.
Anderson, J., concurs in this opinion.