Bethea v. Bethea

• Decision Date: 21 January 1904
• Citation: 139 Ala. 505,35 So. 1014
• Parties: BETHEA ET AL. v. BETHEA.
• Court: Alabama Supreme Court

35 So. 1014

139 Ala. 505

BETHEA ET AL. v. BETHEA.

Supreme Court of Alabama

January 21, 1904

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Suit by Kate Bethea and others against Henry Bethea and others for partition. Partition was ordered, the land sold, and Henry Bethea purchased at the sale. After confirmation of the sale Mamie Bethea and another, defendants in the original suit continued in occupation of the premises, and Henry Bethea petitioned that the value of the use and occupation be deducted from the shares of the proceeds of the sale due to Mamie Bethea and the other occupant of the premises, and paid to petitioner. From a decree for petitioner, respondents appeal. Affirmed.

The original bill in this case was filed by Kate Bethea and others against Henry Bethea, Theodore Bethea, and Mamie Bethea, and sought to have certain property, owned by plaintiffs and defendants as tenants in common, sold, and the proceeds of the sale distributed among the co-tenants. The relief prayed for in the bill was granted, and among the property sold was a house and lot situated in the city of Montgomery. This house and lot was purchased by Henry Bethea at the price of $9,500, his bid of this amount being the best, highest, and last bid. The sale being reported Theodore and Mamie Bethea filed their objections to the confirmation of the sale, upon the ground of the inadequacy of price, the sum being greatly disproportionate to the real value of the house and lot. This objection of Mamie and Theodore Bethea was overruled, and the sale was confirmed by a decree of the court, and in said decree a deed was ordered to be made to the purchaser. In the decree of confirmation it was provided that if the two objecting parties desired to take an appeal, and in the meantime to supersede the decree they should have the right to do so, upon executing a supersedeas bond in the sum of $500. From the decree confirming the sale of the house and lot, and ordering a deed thereto to be made to Henry Bethea, Mamie and Theodore Bethea took an appeal, giving only a bond for the costs of the appeal, and not a supersedeas bond. While the cause was pending in the Supreme Court upon this appeal, the purchaser Henry Bethea, who had paid his money into the registry of the court upon the deed of sale of the property, moved the court for a writ of possession, upon the ground that Mamie Bethea and Theodore Bethea had failed to supersede the judgment and were still occupying the premises. Pending the hearing of this petition, Mamie and Theodore Bethea executed a supersedeas bond in accordance with the decree of confirmation. Subsequently the decree confirming the sale and ordering the deed made to Henry Bethea was affirmed by a judgment of the Supreme Court. Pending said appeal, the money which had been paid by Henry Bethea remained in the registry of the court. No effort was made to disturb the same until after the affirmation of said decree by the Supreme Court. After the affirmation of this decree by the Supreme Court Henry Bethea filed a petition in the City Court of Montgomery praying that the court direct the register to distribute the funds derived from the sale of said house and lot among the parties according to their respective interests. Upon the hearing of this petition, Henry Bethea filed another petition in the cause, alleging substantially the foregoing facts, and further alleging that Mamie and Theodore Bethea had been in the use and occupation of the said house and lot purchased by him from the time of the sale thereof down to the time of filing the petition, and further averring that the petitioner was entitled to rent for such use and occupancy, which Mamie Bethea and Theodore Bethea declined to pay. The prayer of this petition was that Mamie Bethea and Theodore Bethea be made parties defendant thereto; that a reference be held to ascertain a reasonable value of the use and occupation of the property since the date of the decree confirming the sale, and that said accounting may extend to the date of the decree upon this petition; that Mamie and Theodore Bethea be ordered to pay the amount so ascertained as the reasonable value of the use and occupancy of said property, and that the sum so ascertained to be due and owing for the use and occupancy of said premises may be deducted from the distributive interest of said Mamie Bethea and Theodore Bethea in the fund arising from said sale, and also be directed to be paid over by the register to the petitioner; that a deed be made to the petitioner to said property, and that the petitioner be put in possession of said property. There was also a prayer for general relief. There was an agreement between the parties as to what was a reasonable value for the use and occupation of the premises, but Mamie Bethea...