Betts v. Ward

• Decision Date: 15 February 1916
• Docket Number: 8 Div. 844
• Citation: 72 So. 110,196 Ala. 248
• Parties: BETTS et al. v. WARD.
• Court: Alabama Supreme Court

72 So. 110

196 Ala. 248

BETTS et al. v. WARD.

8 Div. 844

Supreme Court of Alabama

February 15, 1916

Rehearing Denied June 1, 1916

Appeal from Chancery Court, Madison County; W.H. Simpson Chancellor.

Bill by Robert L. Ward against Martha L. Betts and others for a sale of land for partition. Decree for complainant, and respondents appeal. Affirmed in part, and in part reversed and remanded.

David A. Grayson and Turner Petty, both of Huntsville, for appellants.

Lanier & Pride, Cooper & Cooper, and R.E. Smith, all of Huntsville for appellee.

THOMAS J.

On March 5, 1878, John L. Blair and wife conveyed to Sim Jordan the northwest quarter of the northeast quarter of section 9 township 4, range 1 west, reserving as a roadway narrow strips, 30 feet wide on the west side, and 15 feet wide on the north side thereof. It is undisputed that the mother of appellants furnished the money with which these lands were bought. On November 29, 1880, Sim Jordan and wife conveyed to the appellants and Jackson Fletcher the 40 acres in question, with the exception of said 30 feet on the west and 15 feet on the north.

Before 1890, one of the joint owners, Jackson Fletcher, becoming 21 years of age, insisted on a partition of said lands, and his portion, one-fifth, was accordingly marked off and set apart to him as 8 acres. The lines and corners thereof were fixed and he was given, and assumed, the immediate and exclusive possession of this tract. After assuming such possession, on December 28, 1891, said Fletcher and his wife mortgaged to Mary A. Murphy 6 of the 8 acres, describing this tract by metes and bounds, it being the tract now indicated on the map as "D." After this mortgage was foreclosed by Mary A. Murphy, on March 6, 1905, she and her husband made appellee a deed to said tract, describing it as:

"Six acres in the southeast corner of northwest quarter of the northeast quarter of section 9, township 4, range 1 west, and more fully described as follows, to wit: Beginning at a stake in the center of the northeast quarter of section 9, township 4, range 1 west, thence west 15.12 chains, thence north 4 chains, thence east 15.12 chains, thence south 4 chains to beginning, containing 6 acres more or less."

These conveyances recognize the partition of the lands made at the instance of Jackson Fletcher, the allotment of his one-fifth of the same, and his conveyance of said 6-acre tract thereof according to the allotment.

It is elemental that a party may not disaffirm a voidable contract and at the same time enjoy the benefits received thereunder. B.R., L. & P. Co. v. Hinton, 158 Ala. 470, 475, 48 So. 546; Snead v. Scott et al., 182 Ala. 97, 62 So. 36; Harrison v. Ala. Mid. Ry. Co., 144 Ala. 246, 40 So. 394, 6 Ann.Cas. 804. This rule prevails both at law and in equity. B.R., L. & P. Co. v. Jordan, 170 Ala. 530, 537, 54 So. 280.

Grounded on the same reasoning is our holding that, having demanded partition and gone into the immediate and exclusive possession of the portion of land set apart to him, Jackson Fletcher and the several grantees under him, or those claiming through them, are estopped to repudiate the parol agreement for the allotment, or to question its validity. This is in line with the holding of Lord Chancellor Hardwicke, in Ireland v. Rittle, 1 Atkyns, 541, case 256. In Neale v. Neale, 15 Eng.Ch.Rep. 673, the Master of the Rolls held that the parol agreement of partition was "in the nature of a family arrangement and followed by the uninterrupted several enjoyment of the portions allotted to the two brothers respectively, is one agreement which this court will enforce." The decision was appealed from, and was affirmed by the Lord Chancellor. As long as the reason for a rule exists, so long does the rule prevail. Bank v. Plannett's Adm'r, 37 Ala. 222; Cow. & H. Notes (1st pt.) 310.

In Yarborough's Adm'r v. Avant, 66 Ala. 526, 631, Chief Justice Brickell announced the same principle and cited, as authority therefor, Hazen v. Barnett, 50 Mo. 506; Freeman on Cotenancy and Partitions, § 402. He said:

"The parol partition, accompanied by possession, not continued so long that, in a court of law, the statute of limitations would operate a bar to a real action by Yarborough, or his heirs, in whom the legal estate resided, passed to Avant a mere equitable title, of which the court of law, on the trial of the real action, could take no notice. *** A court of equity will intervene, and confirm a parol partition of lands which is founded on a valuable consideration, when it is attended by possession. *** The court proceeds upon the same principle on which bills of peace are entertained, quieting the enjoyment of equitable rights, establishing them by decree, and removing clouds from title."

In Hazen v. Barnett, supra, the court said:

"Although it is laid down that a parol partition is good as between the parties when accompanied by possession, yet it seems to me that the equitable title only passes, which by adverse possession may ripen into a legal estate. In my opinion the plaintiffs had a right to have this parol partition confirmed by a decree vesting in them whatever title the defendant had in the premises.

The general statement of the rule in section 402 of Freeman on Cotenancy and Partition is based on Lord Chancellor Hardwicke's opinion in the Ireland-Rittle Case, supra. Mr. Freeman concludes as follows:

"While the legal title might not, perhaps, be considered as passing by parol partition, unless after a possession sufficiently long to justify the presumption of a deed, yet the parol partition, followed by a several possession, would leave each cotenant seized of the legal title to one half of his allotment and the equitable title to the other half, and by a bill in chancery he could compel from his cotenant a conveyance of the legal title according to the terms of the partition." Tomlin v. Hilyard, 43 Ill. 302, 92 Am.Dec. 118; Eaton v. Tallmadge, 24 Wis. 221; Buzzell v. Gallagher, 28 Wis. 678; Freeman on Cot. & Part. § 408, and authorities.

Mr. Justice Sayre collects many authorities in Oliver v. Williams, 163

Ala. 376, 50 So. 937, to the effect that in ejectment a parol partition between tenants in common, followed by possession taken and retained thereunder, may be given in evidence as binding on them and as tending to show a repudiation of the other cotenants' right, and as a claim of exclusive ownership brought actually to the knowledge of the other cotenants. He says:

"The case of Yarborough v. Avant, 66 Ala. 526, seems to recognize, inferentially at least, that a parol partition of lands, followed by possession, continued for so long a time that the statute of limitation operates as a bar, vests in the cotenants legal title to the parts assigned to them respectively. At the common law a voluntary partition of lands could be made by parol between tenants in common."

The opinion (163 Ala. 382, 50 So. 939) closes a discussion of the American cases with these words:

"Judge Freeman (section 398, Cot. & Part.) concludes it to be evident that a parol partition of the lands of cotenants, when followed by possession taken or retained in pursuance of it, is binding upon them, is gaining rather than losing ground, and that, while there may be difference of opinion respecting the reasons on which the proposition ought to rest, practically, it makes little difference what view prevails; for under either each cotenant is entitled to retain the land so partitioned and allotted to him." Hollis et al. v. Watkins, 189 Ala. 292, 66 So. 29.

In 21 Am. & Eng.Ency.Law (2d Ed.) 1138-1141, the text is:

"In equity, however, it is very generally considered that a parol partition, followed by exclusive possession in severalty and the exercise of ownership by the parties or those claiming under or through them, for a considerable time, even though not long enough for the possession to ripen into title by virtue of the statute of limitations, with the acquiescence of all concerned, will be binding upon the parties so far as to give to each cotenant the equitable title to and the right to exclusive possession of his purpart, and may be enforced in a court of equity on the ground that such possession and acquiescence constitute a part of the performance (Welchel v. Thompson, 39 Ga. 559, 99 Am.Dec. 470; Lacy v. Gard, 60 Ill.App. 72; Weed v. Terry, 2 Doug. [ Mich.] 344, 45 Am.Dec. 257; Kennemore v. Kennemore, 26 S.C. 251, 1 S.E. 881), or that the actions of the parties joining in and accepting exclusive possession under the parol partition will estop them from asserting any title or right to possession in violation of its terms." Whaley v. Dawson, 2 Sch. & Lef. 367; Berry v. Seawall, 65 F. 742, 13 C.C.A. 101; Allen v. Seawell, 70 F. 561, 17 C.C.A. 217; Le Bourgeoise v. Blank, 8 Mo.App. 434.

Actual separation of the parts is not necessary to a partition, but an act of the copartners allotting to each a portion of the property which he can take and enjoy without interruption is sufficient. Compton v. Mathews, 3 La. 128, 22 Am.Dec. 167.

It is not necessary in a partition among cotenants that each shall take his own share in severalty, but they may divide their lands in such way and manner as they deem most conducive to their mutual interests, and two or more may take shares as tenants in common. Folger v. Mitchell, 3 Pick. (Mass.) 396; Smith v. Hill, 168 Ala. 317, 52 So. 949.

An attempted partition, originally ineffectual or voidable becomes valid and binding by the ratification or acquiescence of all the persons interested in the property. Simmons v. Spratt, 26 Fla. 449, 8 So. 123, 9 L.R.A. 343; Bacon v. Shultz, 35 La.Ann. 1059; Gulick v. Huntley, 144 Mo. 241, 46 S.W. 154; Sutton v. Porter, 119 Mo. 100, 24 S.W. 760, 41...