Hall v. Hall

• Decision Date: 20 May 1948
• Docket Number: 6 Div. 702.
• Court: Alabama Supreme Court
• Parties: HALL v. HALL et al.

35 So.2d 681

250 Ala. 702

HALL v. HALL et al.

6 Div. 702.

Supreme Court of Alabama

May 20, 1948

Rehearing Denied June 17, 1948.

W. Marvin Scott, of Cullman, for appellant.

Ernest Galin, of Cullman, for appellees.

FOSTER Justice.

Appellant in this case owns an undivided one-fifth interest in a forty acre farm, and by a crossbill to a bill seeking a sale for division, is trying to have a court of equity set apart to him eight acres of the forty, being one-fifth of the total in area, and embracing the home place and appurtenances, leaving the balance of the forty, or thirty-two acres, to be sold for division among the other tenants in common, offering to pay a proper amount as owelty for the benefit of the other heirs so as to adjust their shares respectively, to be equal in value to that of the eight acres sought to be set aside for himself.

The court on hearing the evidence taken in open trial found as follows: 'That there are multiple parties entitled to share in said land or the benefits therefrom, and are joint owners thereof; and that the improvements, buildings, etc are located on eight acres of land situated more or less in the center of said forty acres of land; and the court is of the further opinion that said eight acres of land with the buildings and improvements thereon cannot be partitioned to the defendant, Lester C. Hall, and owelty allowed to the other co-owners with any degree of accuracy as to an equitable finding, this forty acres of land being a farm unit and, if the improvements are removed from the center thereof, the court is unable to ascertain and does not attempt to assess a valuation of the balance of said property, the evidence being weak and contrary on said point and therefore the court holds that the same cannot be partitioned with owelty and equity, fairness and justice done in the premises; hence the dismissal of the crossbill.'

The land was owned by the complainants and the respondent, so that including respondent, three of them each owned an undivided one-fifth interest, two each an undivided one-tenth interest, and five each an undivided one-twenty-fifth interest.

Regardless of said facts, as found by the court, appellant contends that as a matter of equitable right he should have set-off to him on his demand the eight acres comprising the dwelling and outhouses, if he pays into court for the others an amount as owelty enough to equalize the value of their interest to him under the authority of section 190, Title 47, Code, and decisions of this court and others on the subject.

Let it be said in the first place that he has no more claim to that area than any of the others. He made none of the improvements. He has occupied it since the death of the ancestor, and has kept up the repairs without paying rent. His contention would be no less than a requirement that the court make a private sale to him of the said eight acres and a public sale of the balance, when he has no more claim on the eight acres than the other tenants in common.

Section 190, Title 47, supra, contemplates an equitable partition of the entire tract, so that each will receive a portion of land of equal value to that of the others in proportion to their interest. If the land is such as that to make a partition equal one or more must get a tract of more value than the others that excess in valuation can be adjusted in equity by paying owelty. But that statute does not obtain unless the entire tract can be thus partitioned.

The case of Smith v. Hill, 168 Ala. 317, 52 So. 949, sustains the view that sometimes in a partition suit the separate owners of the fractional interests may consolidate their claims, and, if found equitable, the court may setoff to them jointly their proportionate share, and to the others each their respective shares. In that case, complainant owned a seven-twelfths interest. The respondents equally owned five-twelfths. They sought to have fivetwelfths setoff to them with owelty, leaving seven-twelfths intact for complainant. That was held to be permissible, since it was equitable.

In the case of Hollis v. Watkins, 189 Ala. 292, 66 So. 29, two brothers owned the land, and each resided on it with his family. Each had a separate settlement and residence. Both of them died. One left a widow and no children: the other left a widow and six children. The court held that the widow and six children had a right to have the land divided in two equal parts, one for each family, and 'Under the facts in this case, an actual partition of the land is unnecessary, as equity can be done by setting aside the homestead of the widow of the brother leaving children, and by setting aside to her for her life by metes and bounds one-sixth of the entire tract as dower, and then selling the remainder of the land for division between the widow of the first brother dying without issue, and the children of the second brother, paying to the widow of the first brother out of such proceeds the value of her dower and homestead rights, and dividing the remainder, after payment of indebtedness, among the children.'

A similar case was Upshaw v. Upshaw, 180...