Fies v. Rosser

• Decision Date: 20 May 1909
• Citation: 162 Ala. 504,50 So. 287
• Parties: FIES ET AL. v. ROSSER.
• Court: Alabama Supreme Court

50 So. 287

162 Ala. 504

FIES ET AL. v. ROSSER.

Supreme Court of Alabama

May 20, 1909

Rehearing Denied June 30, 1909.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Kate C. Rosser against Eugene Fies and others. Decree for complainant, and respondents appeal. Affirmed in part, and in part reversed and rendered.

The case made by the bill is that Jennie Johns in her lifetime was the owner of certain lands in the county of Jefferson and that before her death she undertook to execute and deliver deeds for the same to her husband, L. W. Johns; that L. W. Johns undertook to and did execute and deliver a deed to said property to Eugene Fies for the consideration expressed therein, and that said Fies executed to Johns a mortgage for part of the purchase money; that complainant and certain other respondents named therein, other than Fies, are the legal heirs and distributees of Jennie Johns' estate and that she is dead intestate. The bill alleges the insanity of Jennie Johns at the time of the execution of the deed to L. W. Johns, and that the deed is void for that reason, and that Johns, having no title, conveyed none to Fies, except possibly his life estate in the said land. The prayer of the bill is that the deed from Jennie Johns to L. W. Johns and from L. W. Johns to Eugene Fies, and the mortgage from Fies to Johns, be declared null and void and of no effect, and delivered up for cancellation, and that the property described be sold for the purpose of division between complainant and certain of the respondents, who are joint owners. Fies interposed demurrers, setting up that it appeared that L. W. Johns had a life estate in the property described, and that it is not averred that the respondent L W. Johns joins in the prayer of the bill of complaint for the sale of the property described for division, or consents thereto, and this court has no jurisdiction to order a sale for division without the consent of the life tenant, or until the life estate falls in. The other respondents filed numerous demurrers, setting up that Kate Rosser is not shown by the bill to be entitled to possession of the property mentioned in the bill, or that she has an estate in possession, and many other grounds not necessary to be set out.

Tillman, Bradley & Morrow and Frank S. White & Sons, for appellants.

H. C. Mead, A. B. Perdue, and F. E. Blackburn, for appellee.

ANDERSON J.

The bill in this case claims nothing more than a reversionary interest in the property, as it concedes the title of Fies to the life estate of L. W. Johns, the husband of Jennie Johns, which L. W. Johns acquired upon the death of his said wife, and which was conveyed by his warranty to Fies, notwithstanding the deed from Jennie Johns to her husband, the said L. W. Johns, may be void. The bill seeks, however, to cancel said deed from the mother, Jennie Johns, to L.

W. Johns, as a cloud upon the reversionary interest, the cancellation of which is essential to the establishment of any interest whatever in the complainant to the land; for, if said deed is valid, Fies acquired an absolute title under his purchase from L. W. Johns.

"The rule is well established that a court of equity will not entertain a bill to remove a cloud from the title to land in favor of a person asserting a legal right when he is not in possession, unless he shows some special equity; that is, some obstacle or impediment which would prevent or embarrass the assertion of his rights at law." 3 Mayfield's Dig. p. 197, § 418. In the case before us the existence of the life estate and the possession of the land by the respondent, holding under a life tenant, is an obstacle or impediment in the way of an assertion by the complainant, as reversioner, of her legal rights, and under the principles above stated the complainant, although out of possession, has a right to maintain a bill in equity to remove a cloud from her title in reversion. Mitchell v. Baldwin (Ala.) 45 So. 715; Lansden v. Bone 90 Ala. 446, 8 So. 65.

Section 5231, Code 1907, gives the chancery court jurisdiction to partition by division or to sell for partition, any property, real or personal, held by joint owners or tenants in common, whether the defendant denies the title, or sets up adverse possession or not. This statute, as last amended, was construed in the case of Brown v. Hunter, 121 Ala. 210, 25 So. 924, to mean that a complainant need not be in possession in order to maintain a bill for partition. But we do not understand it as holding that she could maintain the bill if she was not entitled to the possession, as it says she must be entitled to share in the distribution, and we think that the complainant must be entitled to possession or the immediate use of the proceeds after the sale in order to compel a sale of the land for partition.

The common-law rule as to partition has been considerably enlarged and extended by our statute, and we have many authorities holding that, when the partition is sought by one having the right to compel same, all interests can be brought in, whether in præsenti or in reversion. We find no case however, holding that one who has a mere reversionary interest--not right to a present use or enjoyment of the land...