Childs v. Julian, 8 Div. 9.
| Decision Date | 17 April 1941 |
| Docket Number | 8 Div. 9. |
| Parties | CHILDS et al. v. JULIAN et al. |
| Court | Alabama Supreme Court |
Rehearing Denied May 22, 1941.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge. [Copyrighted Material Omitted]
Following the original decision of the case by the Supreme Court rendered April 17, 1941, appellants filed an application for a rehearing in the office of the clerk of the Supreme Court on May 2, 1941. The brief accompanying the application for rehearing contained the following certificate:
Thereafter appellees filed a motion to strike the application for rehearing of appellants, assigning the following grounds:
To appellees' motion to strike appellants replied as follows:
This reply was accompanied by an affidavit of Wynelle Ledbetter in substance as follows: "That she is a stenographer in the office of S. A. Lynne, attorney for appellants in the above styled cause, and was such on May 2, 1941; that on May 2, 1941, she went to the office of E. W. Godbey, solicitor of record for the appellees, and delivered there to the secretary, Nancy Laubenthal, of the said E. W. Godbey, and in his office, a copy of the application for rehearing made by the appellants in the above cause, together with a copy of the brief and argument in support of same."
Appellees filed a counter-affidavit, made by Nancy Laubenthal, and in substance as follows:
Appellees also filed an application for a rehearing in the cause.
S. A. Lynne, of Decatur, for appellants.
E. W. Godbey, of Decatur, for appellees.
The pleadings were for the sale of real properties of joint owners and for accounting.
The appeal was from a final decree setting up and settling the equities of the respective parties and referring matters of fact touching the various interests, equities and liabilities of the joint owners to the register for further report to the court. Such decree was final and supports an appeal. Murphy v. Merchants Nat'l Bank of Mobile, Ala.Sup., 200 So. 894.
The decree of the trial court is challenged in respect to (1) charging E. P. Childs with waste as to the sale of timber and failure to use due care to prevent deterioration of structures on the land in excess of ordinary wear and tear; and (2) in the provisions for homestead and dower.
This court has declared that family agreements by parties who are sui juris, not affected with deception or fraud, with a full understanding of the facts dealing with the common properties, are favored. Such was the decision by Lord Chancellor Hardwicke in Ireland v. Rittle, 1 Atkyns, 541, case 256; Neale v. Neale, 15 Eng.Ch. Rep. 673; Betts et al. v. Ward, 196 Ala. 248, 72 So. 110, and cited with approval in Hazen v. Barnett, 50 Mo. 506, and Freeman on Cotenancy and Partitions, § 402; Yarborough's Adm'r v. Avant, 66 Ala. 526, 631; Oliver v. Williams, 163 Ala. 376, 50 So. 937; Hollis et al. v. Watkins, 189 Ala. 292, 66 So. 29.
The foregoing as touching a family agreement of partition of common properties followed by the possession of respective parties have analogy to the case at hand.
Under the evidence it appears that the common ancestor, J. M. Childs, was heavily involved at the time of his death by way of a mortgage on all of his real properties to the Federal Land Bank and to creditors generally, including the debts incurred during his last illness.
The properties of the ancestor were by common consent and in good faith turned over to E. P. Childs for the purpose of his carrying out a written will of the ancestor which was not probated, it not being thought necessary to probate the same.
The insistence of appellants is that in good faith Mr. E. P. Childs, a tenant in common with his brothers and sisters, privies in blood and with the widow, undertook to carry out the wishes of his father's will and that in such effort he should not be held liable for waste; that he was not a tort-feasor and that the widow was entitled to the possession of these lands until an appropriate order of the court was made determining her homestead and dower rights and that E. P. Childs was acting in line with her wishes as to the lands in question.
The subject of damages by or with the consent of a life tenant was dealt with in the recent decision of Guest v. Guest, 234 Ala. 581, 176 So. 289, 292, wherein it was held that in an action to recover damages to reversionary interest in a piece of land by cutting and destroying standing timber, proper deference must be shown to the judgment of a cotenant in possession and in management of the property partly his own; that a life tenant has the right to cut timber for the purpose of clearing land provided the part cleared with that already prepared for cultivation as compared with the remainder of the tract does not exceed proportion of cleared to woodland "usually maintained in good husbandry," and provided that such clearance does not materially lessen the value of the inheritance; that a life tenant and co-operating remaindermen are properly held accountable to the other remaindermen for the difference between the reasonable market value of sale of timber from the land cleared in a proper case and the reasonable market value of the contract price required and paid in fitting the land for cultivation.
When looking to this record and the evidence the attention of this court is invoked to the end that it is not full and complete in the absence of the Childs' Map, the photostatic depositions of Kirby and the noted depositions of C. L. Peck, taken May 6, 1938, on all of which evidence submission was had. It is the rule in this jurisdiction that when the record is incomplete by the omission of material exhibits before the trial court, there is nothing for review that is materially affected by the omitted exhibits or maps. American Life Ins. Co. v. Carlton, Ala.Sup., 198 So. 1; Gay v. Stewart, 239 Ala. 428, 195 So. 285; Taylor v. Hoffman, 231 Ala. 39, 163 So. 339. However, the "Childs' Map" was before the trial court and is exhibited to this court. We observe from the description in the pleading and mortgage to the land bank that a proper description can be employed in the final decree of sale of the tract of land of which the ancestor died seized and possessed. It results that the provisions of the decree as to providing an abstract, if such was necessary to a sale, was without error. This because the abstract in possession of the Federal Land Bank of New Orleans is not readily accessible to the trial court.
It is declared in Williams v. Anthony, 219 Ala. 98, 121 So. 89, and Teal v. Chancellor, 117 Ala. 612, 23 So. 651, that when a decedent is alleged to owe no debts and no personal representative has been appointed, there being no necessity for same, the chancery court will take jurisdiction to settle disputes and distribute the estate among those entitled to receive the same, and to settle and adjust all controversies between the heirs and distributees, equalizing all shares of each to the other. Howell v. Ward, 230 Ala. 379, 161 So. 487.
It is further the declared rule in this jurisdiction that a chancery court having taken jurisdiction in such an estate may duly ascertain, set apart and declare the homestead exemption and the dower rights of the widow. Howell v. Ward, supra; Whitehead v. Boutwell, 218 Ala. 109, 117 So. 623; Stokes v. Stokes, 212 Ala. 190, 101 So. 885; Leddon v. Strickland, 218 Ala. 436, 118 So. 651. See Code 1923, § 7427 et seq., Code 1940, Tit. 34,§ 40 et seq., as to the right of dower.
It is further well established that the widow was entitled to the possession of the dwelling where the husband most usually resided, and the plantations connected therewith, as a part of her quarantine right, until her homestead and dower rights are assigned and her occupancy and use thereof are free from the payment of rents. Whitehead v. Boutwell, supra; Yarbrough v. Yarbrough, 200 Ala. 184, 75 So. 932; Sandlin v. Anders, 210 Ala. 396, 98 So. 299.
As to the rights of the widow and cotenants, the decree was:
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