Donnor v. Quartermas

• Decision Date: 18 June 1890
• Citation: 8 So. 715,90 Ala. 164
• Parties: DONNOR ET AL. v. QUARTERMAS ET AL.
• Court: Alabama Supreme Court

8 So. 715

90 Ala. 164

DONNOR ET AL. v. QUARTERMAS ET AL.

Supreme Court of Alabama

June 18, 1890

Appeal from city court of Selma; J. HARALSON, Judge.

The original bill in this case was filed on the 18th of August 1884, by Mrs. Sarah H. Quartermas and Mrs. Mary A Quartermas, their husbands joining with them, against Mrs Sarah H. Hillyard, who was their mother, Mrs. Sidney M Donnor, who was their sister, and Frank M. Donnor, the husband of the said Sidney; and prayed a sale of a town lot in the city of Selma which belonged to the several parties as tenants in common, on the ground that it could not be equitably divided without a sale, and also for an account of rents and profits. After demurrer sustained, on the ground that a court of equity then had no jurisdiction to decree a sale of the lands of adults for equitable division or partition, without their consent, the complainants were allowed to amend their bill, by striking out the prayer for a sale, and the allegation that a sale was necessary to effect an equitable division of the property, praying a partition instead, and alleging that a partition was practicable. The property in controversy, described as "lot No 47, in the city of Selma," was conveyed by R. N. Philpot, by deed dated February 12, 1844, in the recited consideration of $400 paid, to Mrs. Sarah H. Hillyard, then Sarah H. O'Gilvie, and her sister, Frances M. O'Gilvie, and they at once took possession of it. Sarah H. soon after married Joseph Hillyard, and four children were born to them, namely, the two complainants, Mrs. Donnor and Robert J. Hillyard. In 1857, Frances M. O'Gilvie married Lewis M. Smith; and on the 1st February, 1860, on the recited consideration of natural love and affection, she conveyed her undivided interest in the lot to her sister's four children, above named. By deed dated June 13, 1881, Robert J. Hillyard sold and conveyed his undivided interest in the lot, one-eighth to his mother, Mrs. Sarah H. Hillyard, who thus became the owner of an undivided five-eighths interest, while her said three daughters each owned an undivided one-eighth. Robert J. Hillyard died in 1883, intestate, and never having been married. A decree pro confesso was taken against Mrs. Hillyard, and her death in February, 1886, was afterwards suggested, whereby her three daughters became each entitled to an undivided one-third interest in the property; but the cause was never revived against her administrator, nor does it appear that any was ever appointed. On December 10, 1880, a written agreement, under seal, was concluded and signed by and between Mrs. Hillyard and her four children, the husbands of the three daughters joining with them, which was made an exhibit to the bill, and which, after reciting their respective interests in the property, thus proceeds: "And whereas, we have this day bargained, sold, and conveyed to A. J. Golding" a certain portion of the property particularly described; "and whereas, we, said Sarah H. Hillyard, Robert J. Hillyard, and Sidney M. Donnor, and her husband and children, now occupy and enjoy the use and occupation, and rents and profits, of said premises, and have heretofore so done, and do purpose and intend to occupy and enjoy as a homestead, for and under the consideration hereinafter written, the dwelling and remaining part of said lot, together with the rights and privileges thereof, until a sale, or other disposition thereof, as hereinafter provided, shall be made; and whereas, there have heretofore existed on the part of several of us certain conflicting and other claims, of and concerning the said premises, including the occupation by some of us, the payment of taxes and insurance by some of us, as well as other things and charges: Now, it is hereby understood and agreed that all of said matters have been and are now hereby settled, compromised, and held for naught, in and for the conditions and stipulations of these presents; and, for and because of the conditions and stipulations hereof, the respective shares of each of us, of, in, and to the remaining part of said lot, with the appurtenances thereunto belonging, are now and hereby declared to be as follows," stating them as above; "and whereas, it is the desire, as above written, of the said Sarah H. Hillyard, Robert J. Hillyard, and Sidney M. Donnor, with her said husband and children, to continue to live on and occupy the said last-named premises as a homestead, and the same is consented to by said Mary A. and Sarah H. Quartermas and their respective husbands, on the condition that they, said Sarah H. and Robert J. Hillyard and Sidney M. Donnor, and her said husband, shall and do pay, or cause to be paid, all and singular whatever of taxes there now are, or which shall hereafter, during said occupancy and tenancy, become due or be assessed against said property, and shall also, at the fair valuation thereof, keep the improvement on said premises, during said occupancy, well insured against loss or destruction by fire, whereby, should the said improvements, or any of them, be injured or destroyed by fire, said Mary A. and Sarah H. Quartermas will be reimbursed and paid therefor; and the said Sarah H. and Robert J. Hillyard and Sidney J. Donnor and her husband assenting and agreeing thereto; and we respectively further agree that said Sarah H. and Robert J. Hillyard, and the said Sidney M. Donnor and her husband, shall be relieved and discharged from the payment of rent for said premises, because of the payment of said taxes and insurance, so long as they shall occupy the same, provided that we, said Mary A. and Sarah H. Quartermas, shall not sell and convey our respective shares. It is therefore expressly agreed and understood that should we, said Mary A. and Sarah H. Quartermas, or either of us, sell and dispose of our or either of our said shares in said property, the said right to so occupy said property by said other tenants in common shall cease and be determined. In witness whereof," etc.

On the 5th August, 1881, the property, or a part of it, was sold for unpaid taxes, and bid in by the state, and another portion was sold and bid in on the 14th August, 1882. On March 26 1883, Mrs. Donnor redeemed or bought the interest of the state, and received two conveyances from the state auditor, each containing a recital that she did "not claim to be the owner of said land." In one of said deeds, the property sold and conveyed is described as "to houses and lots on the south side of Alabama street, in Selma;" and in the other, as "one house and lot on the south-east corner of Lawrence and Alabama streets, in Selma." The bill alleged the sale for taxes, and purchase by Mrs. Donnor in her own name, annexing copies of the conveyances to her as exhibits; and complainants insisted that her purchases inured in equity to the equal benefit of all the tenants in common. The amended bill prayed, also, that the amount found due to the complainants from Mrs. Donnor, on the statement of the account for rents, might be charged as a lien on the portion of the property allotted to her. Mrs. Donnor filed a separate answer, in which she denied the execution of said agreement of December 10, 1880, and its binding force against her or her statutory property; denied her liability to pay or account for rents, alleging that she had paid rents to her mother, Mrs. Hillyard; and asserted title to the property under her purchase from the state. F. M. Donnor, in his answer, alleged that he and his wife signed said written agreement of December 10, 1880, in ignorance of its contents, and on representations of complainants and their husbands that it was necessary to perfect the sale of a part of the property to said Golding. On final hearing on pleadings and proof, the court held that the complainants were entitled to have a partition of the property, and appointed commissioners to make the partition, instructing them that "they will not fail to make partition of said premises because it may appear that partition will be inconvenient or injurious to the parties in interest; that, in allotting to the parties their several shares, the commissioners may look to their respective circumstances, and assign to each that part of the property which will best accommodate her, without injury to the others; that if the complainants elect to consider their shares...