Bowden v. Teague

• Decision Date: 21 February 1957
• Docket Number: 1 Div. 673
• Citation: 266 Ala. 30,93 So.2d 408
• Parties: John L. BOWDEN et al. v. Hortense TEAGUE et al.
• Court: Alabama Supreme Court

Page 408

93 So.2d 408

266 Ala. 30

John L. BOWDEN et al. v. Hortense TEAGUE et al.

1 Div. 673.

Supreme Court of Alabama.

Feb. 21, 1957.

Rehearing Denied March 21, 1957.

Barnett, Bugg & Lee, Monroeville, and Walter B. Venters, Opelika, for appellants.

Edwin C. Page, Jr., Evergreen, Tolbert M. Brantley, Bay Minette, Frank G. Horne, Atmore, and Windell C. Owens and John M. Coxwell, Monroeville, for appellees.

GOODWYN, Justice.

This is an appeal from a decree of the circuit court of Monroe County, in equity, overruling demurrer to a bill for sale of land for division.

The determinative question presented on this appeal is whether the bill as last amended sufficiently alleges the parties' interest in the land.

'A bill in equity to sell lands for division among tenants in common should disclose that the parties to the bill, complainant and respondent, are the sole owners of the lands, the interest of each of the parties therein, that the same cannot be equitably divided without a sale for that purpose, and should describe the lands sought to be sold with that certainty required in judicial sales of realty.' [Emphasis supplied.] Hinson v. Cook, 241 Ala. 70, 72, 1 So.2d 33, 35.

In alleging such ownership 'it is not necessary * * * to set out the source of title relied on by the tenants in common, nor describe the manner in which they or their ancestor acquired it.' Case v. Pfaffman, 253 Ala. 511, 513, 45 So.2d 453, 455; Henslee v. Williams, 253 Ala. 363, 364, 44 So.2d 763; Ellis v. Stickney, 253 Ala. 86, 92, 42 So.2d 779; Brewer v. Brewer, 250 Ala. 222, 223, 34 So.2d 13; Hinson v. Cook, 241 Ala. 70, 72-73, 1 So.2d 33; Alexander v. Landers, 230 Ala. 167, 168, 160 So. 342; Vest v. Wilson, 223 Ala. 414, 415, 136 So. 730; Richardson v. N. N. & T. J. Powell, 199 Ala. 275, 277, 74 So. 364; Foster v. Ballentine, 126 Ala. 393, 395, 28 So. 529. However, if complainant does undertake to show the source of the parties' title or equitable interest he must allege facts which clearly show good title or a perfect equity. If he fails to do so the bill is insufficient and subject to demurrer even though a sufficient general averment of interest is contained in another paragraph of the bill. Case v. Pfaffman, supra; 68 C.J.S., Partition, § 91, p. 143, from which we quote the following apt statement of the rule:

'The fact that the pleading discloses the source or evidences of title does not of itself, render the pleading insufficient, and does not require further allegations negativing defensive matter with respect to such disclosure. [See Hinson v. Cook, supra; Henslee v. Williams, supra.] If, however, the pleading undertakes to state the facts on which the title rests and the statement omits some indispensable fact, the pleading must be held insufficient; and the fact that the pleading also contains a general statement of title does not cure the defect because, in determining the sufficiency of the pleading both allegations must be construed together. * * *. [See Case v. Pfaffman, supra.]'

Prior to the last amendment of the bill the allegation of the parties' interest was that the complainants, 'with the respondents, are the joint owners' of the lands, the bill also setting forth the interest of each alleged tenant in common. Under the rule of our cases this was sufficient. However, in the last amendment the complainants undertook to set out the parties' source of title or interest. Therefore, unless the facts alleged in the amendment show a title or perfect equity in the parties the bill is demurrable. Case v. Pfaffman, supra.

The portion of the amendment which attempts to set out the parties' source of title or interest is as follows:

'Now come the Complainants in this proceeding and further amend the Bill of Complaint filed herein by adding thereto Subdivision Three-a, as follows: That the Complainants and Respondents named herein are joint owners and tenants in common in the lands described in Subdivision Second, of the original Bill of Complaint as amended; all the Complainants and Respondents being such joint owners and tenants in common by reason of a Solemn Agreement and Contract entered into between the ancestors of the parties hereto, being by name: W. S. Bowden Sr., Lizzie Bowden, Casinda Lambert, E. A. Wiggins, D. R. Wiggins and R. L. Wiggins, on or about the 12th day of March, 1910, which said agreement is in word and figures as follows:

"The State of Alabama Monroe County

"Know All Men By These Presents: That whereas, on the 12th day of March, 1910, we the undersigned joint owners of certain lands in Monroe County, Alabama, known as the Sarah Bowden tract of land and containing in the aggregate Nine Hundred Twenty (920) acres, have mutually agreed between themselves, and in order to better perfect title to said property above mentioned do hereby agree as follows:

"First:

"That none of the parties to this instrument shall commence any action in any court to make any conveyance of their undivided interest in said aforementioned property until, and after the expiration of thirty (30) years from the date of signing hereof.

"Second:

"That W. S. Bowden Sr., and his wife Lizzie Bowden, be authorized and empowered by this agreement to assess and pay taxes on said property, and that rents and other income from said property be used for the purpose of paying taxes duly assessed thereon.

"Third:

"That in the event of sale of any merchantable timber from said lands during the life of this agreement said W. S. Bowden Sr., and Lizzie Bowden, are hereby authorized to conduct said sale and use the proceeds thereof for the sole purpose of making repairs to buildings and fences on said lands and for their general upkeep from year to year.

"Witness our hands and seals this the 12th day of March, 1910.

"W. S. Bowden Sr. (Seal)

Casinda Lambert (Seal)

Lizzie Bowden (Seal)

E. A. Wiggins (Seal)

D. R. Wiggins (Seal)

R. L. Wiggins (Seal)

"Sworn to and subscribed before me this the 12th day of March, 1910.

"T. N. Ikner, J. P.

Monroe County, Alabama.'

'The Complainants further allege that after said agreement was entered into, the original executed copy was left in the possession of W. S. Bowden Sr., and W. S. Bowden Sr. and Lizzie Bowden remained and continued in possession of the lands in question in this litlgation, paid the taxes thereon, did not convey their interest in said lands; used the usufruct therefrom to maintain the lands; keeping up the buildings and fences, all as provided by said agreement herein described; that said agreement provided that the relationship between the parties concerning the lands as described, was to continue for a period of thirty years from the date thereof, and did so continue; that on the 13th day of March, 1940, and immediately thereafter, all of the original parties to said agreement were dead, except D. R. Wiggins, W. S. Bowden Sr. having died in the year 1929, and his wife, Lizzie Bowden, having died in the year 1938.

'Complainants further show unto your Honor that said agreement as set forth herein was entered into for the purpose of vesting title in the lands described in the Bill of Complaint as amended in W....