Freeney v. Stallworth

• Decision Date: 11 March 1977
• Parties: Jacob FREENEY v. Evangeline Freeney STALLWORTH et al. SC 2067.
• Court: Alabama Supreme Court

Page 752

344 So.2d 752

Jacob FREENEY v. Evangeline Freeney STALLWORTH et al.

SC 2067.

Supreme Court of Alabama.

March 11, 1977.

Rehearing Denied April 29, 1977.

W. H. Baldwin, Andalusia, for appellant.

Robert B. Albritton, Andalusia, for appellees.

EMBRY, Justice.

The issue here is whether defendants to an action of partition and sale for division are entitled to a jury trial on demand. We hold they are and reverse.

Plaintiffs, the Stallworths and others, petitioned that a tract of land in Covington County be sold for division, alleging that they and defendants were joint owners, or tenants in common, of the property. Five of defendants, one of whom, Jacob Freeney, is appellant here, filed an answer that denied plaintiffs' interest in the land, and alleged that Antnie (Anntie) Freeney was the true owner of the property, having acquired title by warranty deed; Antnie Freeney counterclaimed and alleged she is sole owner of the property by warranty deed and adverse possession. Plaintiffs filed a motion to strike defendants' jury demand. It was granted. The court heard the evidence without a jury and entered a final decree; Antnie Freeney's counterclaim was denied, the respective interests of plaintiffs and defendants, in the land, were determined and a sale for division ordered. Defendant Jacob Freeney was awarded a 54/1080 interest; other defendants and plaintiffs received varying fractional shares.

Jacob Freeney filed motion for rehearing on the grounds of failure to provide a jury trial as demanded, and failure to rule that Antnie Freeney and her sons Jacob, Altea, Orea and C. L. Freeney had acquired title to the property by adverse possession. The motion was denied. The defendant appeals, asserting the sole issue to be whether he is entitled to a jury trial.

The record before us consists only of the pleadings, motions, orders and final decree of the court. In his designation of the record on appeal, defendant requested no testimony be transcribed and based his appeal 'on the record proper,' saying the issue for review is as stated above. Rule 10(b)(2), ARAP. Plaintiffs, appellees, designated other parts of the record on appeal: plaintiffs' amended complaint alleging that the deed through which Antnie Freeney claims title to the land is null and void, the answer to Antnie's counterclaim denying same, defendants' amended answer pleading the statute of limitations, and Antnie Freeney's motion for directed verdict. Plaintiffs also filed a motion to dismiss the appeal.

A. Right to jury trial

Title 7, § 326, Code of Ala. (1940), provides that a defendant in an action for partition, or sale for division, who denies plaintiff's title or sets up an adverse claim is entitled, on demand, to a jury trial. This principle has been consistently adhered to in the decisions of this court. Biddy v. Biddy, 284 Ala. 68, 222 So.2d 162 (1969); Kirkley v. Green, 273 Ala. 602, 143 So.2d 454 (1962); Sandlin v. Anders, 210 Ala. 396, 98 So. 299 (1923). This is not, as plaintiffs contend, in conflict with Tit. 47, §§ 186 et seq. That statute confers upon the circuit court original jurisdiction to divide, partition, or sell for division, property held by joint owners. Because the statute provides that in such actions the court shall proceed 'according to its own practices in equity cases' and that the court shall decide all questions concerning title, does not preclude or modify the right of those who deny plaintiff's title to a jury for the trial of fact issues. A careful reading of Sandlin v. Anders, supra, will show that the purpose of Tit. 47, § 186, was to abolish the old rule that a court of equity had no original jurisdiction to sell lands for division. The purpose of the statute was to avoid requiring a...