Chandler v. Home Loan Co.

• Decision Date: 10 April 1924
• Docket Number: 6 Div. 946.
• Citation: 99 So. 723,211 Ala. 80
• Parties: CHANDLER ET AL. v. HOME LOAN CO. ET AL.
• Court: Alabama Supreme Court

99 So. 723

211 Ala. 80

CHANDLER ET AL. v. HOME LOAN CO. ET AL.

6 Div. 946.

Supreme Court of Alabama

April 10, 1924

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill in equity by Alex Chandler, a minor (by his next friend, Andrew James), and Ollie Jarrett against W. T. Hayden and the Home Loan Company. From a decree denying relief, complainants appeal. Affirmed.

Rudulph & Smith, of Birmingham, for appellants.

Hayden & Hayden, of Birmingham, for appellees.

THOMAS J.

The certificate shows the appeal was taken by the complainants under the provisions of General Acts 1911, p. 589. There was acceptance of citation by cocomplainant Ollie Jarrett, who "unites in this appeal," and separately assigns error. Hence all the parties in interest are before this court. L. & N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900.

Where the averments of the bill are admitted in answer, proof thereof is dispensed with; that is, the whole answer will be looked to by the court for the denials as well as the admissions. Sims Ch. Pr. § 498; Tait v. American, etc Co., 132 Ala. 193, 31 So. 623; Land Mortg., etc Co. v Vinson, 105 Ala. 389, 17 So. 23; Crawford v Kirksey, 50 Ala. 590, 598; 2 Dan. Ch. Pr. 978. However, an answer to a bill cannot supply jurisdictional averments omitted, or inject equity into a bill which as none on its own allegations.

The bill must contain the requirements of the statute before the property sought to be made the subject thereof will be required to be sold for division among tenants in common. Code 1907, § 5222; Gen. Acts 1923, p. 659. It must therefore be alleged and proven (1) that the parties were joint owners or tenants in common in the lands sought to be sold for division (Code 1907, § 5222; Gen. Acts 1923, p. 659; Wood v. Barnett, 208 Ala. 295, Smith v. Duvall,

201 Ala. 425, 78 So. 803; Kelly v. Deegan, 111 Ala. 152, 20 So. 378; Curlee v. Scott, 207 Ala. 478, 93 So. 393; and (2) that the lands cannot be equitably divided or partitioned in kind. Code 1907, § 5222; Gen. Acts 1923, p. 659; McEvoy v. Leonard, 89 Ala. 455, 8 So. 40; Wood v. Barnett, supra; Alexander v. Livingston, 206 Ala. 186, 89 So. 520; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A. L. R. 23; Sandlin v. Sherrill, 210 Ala. 692, 79 So. 264; Parker v. Robertson, 205 Ala. 434, 88 So. 418; Trucks v. Sessions, 189 Ala. 149, 66 So. 79.

It is insisted by appellants that under the pleading and proof it is shown that the property in controversy was owned by Frank and Rosa Jarrett, both of whom had died several years before the bill was filed; that complainant Alexander Chandler is "a son of one of the three children of Frank and Rosa Jarrett, whose parents were dead, and that the defendants have been in the exclusive possession of the property collecting the rent and profits therefrom for a number of years."

The averments in the first paragraph of the bill admitted by the answer are:

"That your petitioner, Alex Chandler, is a minor, 11 years of age, who resides in the city of Birmingham, Ala., and who comes into court and sues by his next friend, Andrew James, said minors [minor's] parents being dead, having no next of kin; that your petitioner, Ollie Jarrett, is a resident citizen of Chicago, Ill., and over the age of 21 years."

It is not averred that the complainant Chandler's mother, Sallie Jarrett Smith, died intestate, or that there was no administration of that estate pending or determined. There is conflict in the evidence as to the paternity of said complainant; and other than the admission in the answer of the averment in the bill, "said minor's parents being dead," the evidence does not show the death of the husband of Sallie Jarrett Smith. There is also confusion or conflict in the evidence as to whether Bessie Jarrett was married at the date the mortgage in question was made; and the evidence does not show that she died intestate. There were no administrators or administrators ad litem to represent the estates of said decedents as necessary parties (Winsett v. Winsett, 203 Ala. 373, 377, 83 So. 117); there being no averment and proof of the nonexistence of debts, and therefore no necessity for an administration of said estates. The fact of the joint ownership is denied, and the question whether the property cannot be equitably divided or partitioned is not shown otherwise than by inference from the nature and character of the property, it being a tract of land in Jefferson county, Ala., with a three-room house thereon worth about $1,000.

It is true, in a proper case, the court could grant relief to either of complainants in equity, as the justice of the case might...