Berry v. Tennessee & C.R. Co.

• Decision Date: 18 November 1902
• Citation: Berry v. Tennessee & C.R. Co., 33 So. 8, 134 Ala. 618 (Ala. 1902)
• Court: Alabama Supreme Court
• Parties: BERRY ET AL. v. TENNESSEE & C. R. CO.

33 So. 8

134 Ala. 618

BERRY ET AL. v. TENNESSEE & C. R. CO.

Supreme Court of Alabama

November 18, 1902

Appeal from city court of Gadsden; John H. Disque, Judge.

Bill by the Tennessee & Coosa Railroad Company against Fannie M Berry and another. Demurrer of respondent Berry to the amended bill was overruled, and she appeals. Affirmed.

Burnett Hood & Murphree, for appellant.

Amos E Goodhue, for appellee.

TYSON J.

The original bill was filed by the Tennessee & Coosa Railroad Company against Fannie M. Berry, alleging that each owned an undivided one-half interest in certain lands described; that said lands could not be equitably divided by metes and bounds; and prayed that the same be sold, and the proceeds divided. Upon a demurrer being sustained to it, the complainant was allowed to file a substituted bill by way of amendment. This amended bill is filed by the same complainant, "who sues on behalf of Anna J. Henderson," and is exhibited against Anna J. Henderson and Fannie M. Berry. After setting forth the manner by which the complainant railroad company acquired its title to a half interest in the lands described and sought to be partitioned, it is averred that the railroad company executed a deed conveying its said one-half undivided interest in said lands to one Carlisle, who afterwards died, leaving Anna J. Henderson, his sole heir at law; that at the date of the execution of said deed the respondent Mrs. Berry, having previously ousted the said railroad company from the possession and enjoyment of its interest in said lands, was in the adverse possession of the same, claiming to be the owner of that interest under color of title. The prayer is for a partition of said lands by metes and bounds, etc., and not for a sale.

It is objected by Mrs. Berry that this amendment was improper, for three reasons: First, that it is a departure from the original cause of action; second, that it wrought an entire change of parties; and, third, that the railroad company has parted with its title. These objections were raised in the court below by demurrer, and constitute the main contention here.

The purpose of both the original and amended bill was a partition of the lands,--to separate the respective shares, either by having the lands partitioned in kind, or to have the tract sold and its proceeds divided. It is true that, in order to have them sold, the averment must be made that they cannot be equitably divided,--an averment not necessary for a partition in kind. But this fact does not alter the general purpose sought to be accomplished, to wit, a partition of the lands either in kind, or of the proceeds arising from the sale of them. The difference is in the relief, rather than in the purposes of the bill as amended. In order to condemn an amendment on the ground of inconsistency or repugnancy, the inconsistency or repugnancy must relate to the purposes of the bill, as contradistinguished from a mere modification of the relief sought. Cain v. Gimon, 36 Ala. 168; Ingraham v. Foster, 31 Ala. 123; 1 Enc. Pl. & Prac. 477. Indeed, we can perceive no good reason why a bill in equity for partition may not be framed in the alternative,--to have the land partitioned, but, in the event it cannot be equitably divided, to be sold. The authority...