Ellis v. Stickney

• Decision Date: 06 October 1949
• Docket Number: 2 Div. 242.
• Citation: 42 So.2d 779,253 Ala. 86
• Parties: ELLIS v. STICKNEY et al.
• Court: Alabama Supreme Court

42 So.2d 779

253 Ala. 86

ELLIS v. STICKNEY et al.

2 Div. 242.

Supreme Court of Alabama

Oct. 6, 1949

Rehearing Denied Nov. 17, 1949. [Copyrighted Material Omitted]

Walter P. Gewin, of Greensboro, and Smyer &amp Smyer, of Birmingham, for appellant.

W. R. Withers, of Greensboro, for appellees.

LAWSON Justice.

This is an appeal from a decree sustaining demurrer to a bill in equity.

The purpose of the bill is to have land sold for division among joint owners; to have an alleged void tax deed removed as a cloud on the title; to ascertain the status of certain mortgages executed by several of the joint owners on their undivided interests in the land, and to pay off the amounts found to be due on the indebtedness secured by the several mortgages.

Under the provisions of §§ 186 and 189, Title 47, Code 1940, a court of equity in a proceeding seeking partition or sale of lands for division among joint owners or tenants in common has the power to remove all clouds on title and determine all claims of joint owners, co-tenants, or claimants. Grisham et al. v. Grisham et al., 251 Ala. 340, 37 So.2d 177.

In Sandlin v. Anders, 210 Ala. 396, 98 So. 299, this court gave careful consideration to the provisions of law now codified as §§ 186 and 189, Title 47, supra, and summarized their effect as follows: (1) The jurisdiction for partition and for sale of lands for division among joint owners or tenants in common is embraced in the same statutes; (2) the chancery court is declared a court of original jurisdiction for both purposes; (3) this jurisdiction is not ousted where defendant denies title or sets up adverse possession; (4) the court proceeds according to its own rules of evidence; (5) when complainant's title is controverted or an issue of title or claim arises between any of the parties, the issue shall be tried in the equity suit; (6) the court has power (a) to determine all questions of title, (b) to remove all clouds on title, (c) to apportion all encumbrances and to adjust the equities between the holders thereof, and (d) to determine all claims of joint owners, co-tenants or claimants.

Other cases of like import are Thomas v. Skeggs, 218 Ala. 562, 119 So. 610; Alexander et al. v. Landers et al., 230 Ala. 167, 160 So. 342; Smith v. Colpack, 235 Ala. 513, 179 So. 520; Dyer v. Conway et al., 236 Ala. 347, 182 So. 43; Thompson v. Heiter et al., 238 Ala. 549, 192 So. 282; Holmes v. Riley et al., 240 Ala. 96, 196 So. 888; Finlay v. Kennedy, 250 Ala. 33, 32 So.2d 883; Betts et al. v. Betts, 250 Ala. 479, 35 So.2d 91; Grisham et al. v. Grisham et al., supra.

The bill is not multifarious. Thompson v. Heiter et al., supra; Long v. Long et al., 195 Ala. 560, 70 So. 733.

This suit involves a 360-acre tract of land in Hale County acquired in 1871 by Taul Hobson and five of his sons. Taul Hobson and the five sons each acquired an undivided 1/6 interest in the property. Taul Hobson died intestate about the year 1900. He was survived by the five sons above referred to and by three other children. All of these children died many years ago. Most of them left children surviving. All of them died intestate. A number of grandchildren of Taul Hobson have died; they all died intestate and were survived by children.

The bill in this case sets out the undivided interests which the heirs at law of Taul Hobson and his children acquired in the suit property. The undivided interests are so small that the common denominator used to determine the respective interests of the said heirs at law is 8640.

Complainant is a great-granddaughter of Taul Hobson. She does not claim any interest in the suit property by descent, but does claim to own a considerable undivided interest therein through purchases from various heirs at law of the grantees in the 1871 deed.

The bill contains an averment to the effect that complainant owns in fee simple an undivided 5960/8640 interest in the property. We think this is a clerical error. This interest is shown by other specific averments to be 5950/8640. It is also averred that complainant owns an undivided 240/8640 interest subject to the life estate of respondent A. J. Wilkinson, Sr., and an undivided 80/8640 interest subject to the life estate of Joseph Brown, Sr. Thus from the averments of the bill it appears that complainant claims to own an undivided 6270/8640 interest in the suit property.

It is alleged that the other undivided interests in the property are owned by various individuals who are made respondents. Such interests are alleged to be as follows: (1) Alberta Denson, 720/8640; (2) A. J. Wilkinson, Jr., 240/8640, subject to the life estate of respondent A. J. Wilkinson, Sr.; (3) Restine Wilkinson, 240/8640, subject to the life estate of A. J. Wilkinson, Sr.; (4) Fannie Stewart, 40/8640, subject to the life interest of Ada Hobson, which life interest complainant owns; (5) Robert Hobson, 40/8640, subject to the life interest of Ada Hobson, which life interest complainant owns; (6) Joseph Brown, Jr., 80/8640, subject to the life interest of respondent Joseph Brown, Sr.; (7) James W. Martin, 80/8640, subject to the life interest of respondent Joseph Brown, Sr.; (8) Paul Hobson, 30/8640; (9) George Hobson, 45/8640; (10) Garland Hobson, 45/8640; (11) Lurlee Mauldin, 45/8640; (12) Fannie Johnson, 45/8640; (13) Charles Nichols, 720/8640.

Thus the total undivided interests of the respondents just above referred to amount to 2370/8640. Their interests, together with the undivided 6270/8640 interest alleged to be in complainant, accounts for the entire interest in the property, 8640/8640.

The bill avers that complainant and all respondents are over the age of twenty-one and that the residences of the respondents above referred to are unknown.

The other respondents to the bill are Mr. W. J. Stevenson, Mrs. Brookie T. Wood, The Peoples Bank of Greensboro, Alabama, a corporation, and Mr. J. B. Stickney.

As to respondent W. J. Stevenson, the bill as amended alleges in substance that Andrew Hobson, a grandson of Taul Hobson, on February 6, 1918, mortgaged his undivided 432/8640 interest in the suit property to Mr. Stevenson; that complainant does not know whether the indebtedness secured by the said mortgage has been paid, but alleges upon information and belief that there is no indebtedness claimed by Mr. Stevenson on the said mortgage debt and on such information and belief alleges that the debt has been paid; that since the filing of the original bill, a decree pro confesso has been taken against Mr. Stevenson. Complainant prayed that the court ascertain whether said mortgage debt has been paid and if so that it be decreed that the record of said mortgage in the probate office of Hale County be marked paid, satisfied and discharged.

In regard to the respondent Mrs. Brookie T. Wood, the bill as amended alleges in substance that John Henry Hobson, a grandson of Taul Hobson, on March 30, 1929, mortgaged his undivided 432/8640 interest in the suit property to Mrs. Wood to secure an indebtedness of $100; that since the filing of the original bill Mrs. Wood has filed a disclaimer of any interest in said mortgage on the suit property. Complainant prays that the court ascertain the true status of said mortgage debt and that if the same has been paid that it be decreed that the record thereof be marked satisfied and discharged.

As to the respondent, The Peoples Bank of Greensboro, Alabama, the bill as amended alleges in substance that Mish Hobson, another grandson of Taul Hobson, on April 2, 1922, mortgaged his undivided 720/8640 interest in the suit property to the said bank to secure an indebtedness of $56; that since the filing of the original bill the said bank has filed an answer averring that said mortgage was transferred and assigned to the respondent Mr. J. B. Stickney.

As to the respondent Mr. J. B. Stickney, the bill as amended alleges in substance that Allen Hobson, who was a grandson of Taul Hobson, on December 18, 1928, mortgaged his undivided 432/8640 interest in the suit property to Mr. Stickney to secure an indebtedness of $500 due on December 18, 1929; that the said mortgage has not been foreclosed nor has the record thereof been marked satisfied. The bill as amended further alleges in substance that John Henry Hobson on November 22, 1924, executed a mortgage to respondent Mr. Stickney on his undivided 432/8640 interest in the suit property, along with other property, to secure an indebtedness of $500. Complainant avers that she has been informed and believes that the said mortgage indebtedness has been paid.

The amended bill further alleges in substance that complainant does not know whether the debts secured by the aforementioned mortgages have been paid or whether said mortgages are valid liens on the undivided interests in the suit property of the several mortgagors. Complainant calls upon the respondent mortgagees or their assignees to propound and prove whatever indebtedness is still due and unpaid and to account for all payments made on the several mortgage debts.

In regard to the said mortgages, the bill as amended prays 'That if upon a final hearing in said cause it is found and ascertained by the Court that there remains unpaid any amount due and owing on any valid mortgages given by any of the mortgagors herein mentioned on their undivided interests in said property that said amount or such amounts be paid to the persons entitled thereto, or so much thereof (said amounts found due, owing and unpaid) as belongs or did belong to the party executing said mortgages, which is to say, that if a party or mortgagor who owned an undivided interest in said property mortgaged said interest for the payment of a debt, that the same fractional part of the proceeds of said sale be used...