Compton v. Simmons, 2 Div. 970.

• Decision Date: 27 June 1931
• Docket Number: 2 Div. 970.
• Citation: 223 Ala. 352,135 So. 570
• Parties: COMPTON v. SIMMONS.
• Court: Alabama Supreme Court

135 So. 570

223 Ala. 352

COMPTON v. SIMMONS.

2 Div. 970.

Supreme Court of Alabama

June 27, 1931

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Bill to partition land among tenants in common by C. L. Simmons against B. Whitfield Compton and Annie Edwards Carter. From a decree for complainant, respondent first named appeals.

Affirmed.

L. R Wilson, of Demopolis, for appellant.

McKinely & McDaniel, of Linden, for appellee.

BOULDIN J.

Appellee C. L. Simmons, filed a bill for the partition of a tract of land, some 560 acres, among tenants in common. Complainant owned an undivided one-sixth interest, respondent Annie Edwards Carter one-sixth, and respondent B. Whitfield Compton four-sixths.

In 1904 the property was conveyed by deed of H. C. Allen to Martha Edwards, Eddie Edwards, Florence Edwards, Bonnie Edwards Annie Edwards, and Ella Edwards, each taking an undivided one-sixth interest. Some or all the grantees, except Martha the mother, were then minors. In 1920, several having arrived at age, a parol partition was made, a county surveyor employed, who made a map showing the portion allotted to each. Possession was taken accordingly by such of the adults as desired so to do.

The partition remained tentative or executory, however, because of the minority of one or more of the children. No partition deeds were made. In 1924 L. S. Compton purchased there shares, taking a deed to his son, B.

Whitfield Compton. At the same time he negotiated for a fourth share, that of Ella Edwards, still a minor, and in 1925, on her arrival of age, she and her husband (Dial) executed the deed. These deeds call for an undivided one-half interest and an undivided one-sixth interest, respectively.

Of the other two shares one was still owned by Bonnie Edwards, married name Davis. Upon the partition she entered into possession of her parcel, and made permanent improvements thereon. In 1926 she sold and conveyed to complainant-appellee, Simmons. By this deed she undertook to convey the absolute title to the parcel allotted to her in the partition, but further conveyed any interest she might have in the entire tract.

The bill set forth the facts above outlined, alleged that a just and equitable partition could best be made by allotting to the present holders the several parcels laid off to their grantors respectively in the partition of 1920, and prayed partition accordingly.

Annie Edwards, now Carter, still owning her interest, by answer, consented to the partition as prayed.

Appellant, Compton, resisted partition in this manner as inequitable, and further alleged in answer that the property could not be equitably divided without a sale for that purpose.

The trial court heard the testimony orally and decreed partition as prayed in the bill.

Without question the court had power to make partition in this way, without the intervention of commissioners; and, if equitable in result, was a proper course. Code, § 9335.

Appellant complains in brief of want of proof that the property could be equitably partitioned without a sale.

It is too well settled to require citation of authority that partition is matter of right. This means a partition in kind unless it affirmatively appears the property cannot be equitably divided, and resort to sale as an alternative...