Gore v. Dickinson

• Decision Date: 03 November 1892
• Citation: Gore v. Dickinson, 98 Ala. 363, 11 So. 743 (Ala. 1892)
• Parties: GORE ET AL. v. DICKINSON ET AL.
• Court: Alabama Supreme Court

11 So. 743

98 Ala. 363

GORE ET AL. v. DICKINSON ET AL.

Supreme Court of Alabama

November 3, 1892

Appeal from chancery court, Calhoun county; L. K. MCSPADDEN Chancellor.

Bill by Mary L. Gore and others against J. A. Dickinson and others for partition. From a decree sustaining defendants' demurrer to the bill and a motion to dismiss, complainants appeal. Reversed.

Savage & Coleman, for appellants.

D D. G. Brothers, for appellees.

THORINGTON J.

Appellants and appellees are the heirs at law of John Dickinson, deceased, and the bill is filed by the former against the latter for the purpose of obtaining partition of certain lands described in the bill of which, it is alleged, their said ancestor died seised and possessed. The essential facts, according to the averments of the bill, are that the tract of land in question consisted, at the death of the common ancestor, of about 840 acres situated in Calhoun county, and in 1867 he and his wife executed a deed, embracing all the property, in favor of the appellees J. A. Dickinson and E. B. Dickinson, on a recited consideration of several thousand dollars. That no consideration was paid, and that the instrument was not intended to operate as a conveyance of said lands, and it was understood that no title should pass, but that the property should continue to be the property of the grantor, and that the conveyance was never accepted by J. A. and E. B. Dickinson. The grantor, John Dickinson, as averred in the bill, remained in possession of the land, claiming and cultivating it as his own. That his possession was open, notorious, and uninterrupted, and with the full knowledge of J. A. and E. B. Dickinson, and so continued up to the time of his death, in 1883. John A. and E. B. at no time disputed his title or possession, or set up any claim to the property. In December, 1886, E. B. Dickinson conveyed to J. A. Dickinson and William Burris (husband of one of the appellants) an undivided three-fifths interest in a portion of the above-mentioned lands, which particular portion is described in the bill. On April 10, 1886, J. A. Dickinson made a deed to E. B. Dickinson purporting to convey the entire tract of land first herein mentioned. On the 18th day of May, 1887, E. B. Dickinson also conveyed to Mary L. Gore, one of the complainants, and her husband, W. W. Gore, an undivided one-fifth interest in the same lands embraced in his deed to J. A. Dickinson and William Burris, and on April 28, 1890, E. B. Dickinson mortgaged to a loan company a certain other portion of the lands particularly described in the bill, to secure the sum of $1,021.21, which he received on said mortgage security. The bill further alleges that the entire tract of land, on the death of John Dickinson, in 1883, descended to his heirs, the parties to this suit, each being entitled to one-fifth interest, except Emma Oswalt, Margaret J. Gassett, William W. Wells, and Peter E. Wells, who represent the interest of their deceased mother. While the death of the latter is not distinctly averred, it is implied in the statement that appellants and appellees constitute all the living heirs of John Dickinson, deceased. It is claimed in the bill that E. B. Dickinson had received "his full share of said lands by the money he has received under the mortgage above stated, and is not entitled to any share in the balance," and that the deed made by E. B. Dickinson to J. A. Dickinson and William Burris, in December, 1886, was made with notice to the grantees that the lands therein conveyed were the joint property of the heirs of John Dickinson, and that the deed was intended as a partial settlement of the claims of the heirs, and no consideration was in fact paid, but in what manner it was intended as a settlement is not stated. It is also averred that the deed from E. B. Dickinson to W. W. Gore and wife was executed "under similar circumstances," and that Gore and wife never accepted said conveyance. The prayer of the bill is for a cancellation of all the deeds mentioned in the bill, including the deed from E. B. Dickinson to Mary L. Gore, one of the complainants, and her husband; that all the lands, except the part mortgaged by E. B. Dickinson to the loan company, may be partitioned between the parties to the bill according to their several interests as stated therein; that E. B. Dickinson be required to "compensate the other heirs for their interest in the land he has mortgaged;" and there is a prayer for general relief. The defendants filed a motion to dismiss the bill for the want of equity, and also demurred on grounds which will hereinafter be noticed. The chancery court sustained the demurrers and motion to dismiss, and from that decree the appeal is taken.

According to the decisions of this court the chancery court, like the probate court, in the exercise of the statutory jurisdiction ^[1] to sell lands for distribution or equitable division, is without authority to decree a sale of lands that are adversely held; but the jurisdiction of a court of equity to decree partition of lands, if the complainant has an immediate right of entry, is not ousted by the mere circumstance of an adverse possession for any period less than 10 years. In the case of McMath v. De Bardelaben, 75 Ala. 68, it is said: "The court has full power to avail itself of the aid of a jury. *** The very purpose of the statute is the enlargement of the jurisdiction of the court, rendering the remedy more efficacious and complete. If, upon the face of the bill, the fact of adverse possession of the defendant had not been disclosed, if it had been first made apparent by the answer of the defendant pleading or averring it in opposition to or denial of the title of the complainant, there can be no ground for saying that it would have affected the jurisdiction. The statute could not have been obeyed, unless the court had entertained jurisdiction, calling in, if necessary, the aid of a jury. That the fact appears from the face of the bill is not material; the jurisdiction of the court is plenary for the determination of its effect." And in Berry v. Webb, 77 Ala. 507, it is said: "We entertain no doubt of the jurisdiction of the court to grant the relief prayed, notwithstanding the fact that the complainant is shown to have been out of possession for many years prior to the filing of the bill, and the defendant *** in possession holding adversely for a period of time less than 10 years, so that her title had not become perfect under the influence of the statute of limitations." Code, § 3588; Freem Coten. §§ 449, 450; McQueen v. Turner, 91 Ala. 273, 8 South. Rep. 863. So, also, it is settled that neither the fact that inconvenience or injury will result or mischief will be entailed upon the property, nor that a division may be embarrassed by difficulties, will deprive a cotenant of the right to demand a partition of the common property. It is a matter of right, and may be decreed by a...