Brewer v. Brewer

• Decision Date: 23 June 1949
• Docket Number: 8 Div. 459.
• Citation: 42 So.2d 244,252 Ala. 629
• Parties: BREWER v. BREWER.
• Court: Alabama Supreme Court

42 So.2d 244

252 Ala. 629

BREWER v. BREWER.

8 Div. 459.

Supreme Court of Alabama

June 23, 1949

Rehearing Denied Oct. 20, 1949.

Brown Scott & Dawson, Scottsboro, and Chas. J. Scott, Fort Payne, for appellants.

H. T. Foster, Scottsboro, and H. G. Bailey, Boaz for appellee.

SIMPSON Justice.

Bill in equity to sell lands for division among the joint owners and tenants in common. From a final decree adjudging that the lands could not be equitably divided in kind and ordering a sale thereof, one of the defendants has brought this appeal.

The Federal Land Bank of New Orleans was made a party defendant to the bill and by its uncontested answer was shown to be the owner and holder of a mortgage on a portion of the land. Taking this uncontroverted answer as true, the trial court very properly limited its decree to ordering a sale of the land and reserved for future consideration all other matters including a determination of the amount due by this mortgage, until the final disposition of the case and on coming in of the register's report. The assignments of error, therefore, relative to this phase of the cause are without merit. It was proper, all necessary parties being before the court and equity having acquired jurisdiction of the subject matter, that it should settle all questions arising out of and affecting the title to that subject matter and to retain jurisdiction of all matters involved in the litigation or growing out of and connected with the subject matter until it shall have been finally disposed of. Ex parte Tennessee Valley Bank, 231 Ala. 549(9), 166 So. 1; Alabama Home Building and Loan Association v. Amos, 233 Ala. 367(4), 172 So. 102. See also Finlay v. Kennedy, 250 Ala. 33(7), 32 So.2d 883; 47 C.J. 482, § 532.

It is also argued that the decree should be reversed because it failed to except the Southern Railroad right of way, the Lee Highway, and the old Larkinsville Road from the description of the land as carried therein. This contention will be here disposed of by modifying the decree to include the exceptions mentioned and it is so ordered.

The final contention for error advanced by appellant relative to the alleged failure of the decree to fix a proper date for the sale of the property is rendered moot by the appeal. On the affirmance hereof the decree a proper order will be entered directing the register to fix another date for the sale at a sufficient future time for the...