Hamby v. Hamby

• Decision Date: 02 February 1910
• Citation: 165 Ala. 171,51 So. 732
• Parties: HAMBY ET AL. v. HAMBY ET AL.
• Court: Alabama Supreme Court

51 So. 732

165 Ala. 171

HAMBY ET AL. v. HAMBY ET AL.

Supreme Court of Alabama

February 2, 1910

Appeal from Chancery Court, Pickens County; Thomas H. Smith Chancellor.

Suit by Frank Hamby and others against Mary Hamby and others. From a decree adjudging the sufficiency of a plea, complainants appeal. Affirmed.

S. L. &amp E. E. Cox, for appellants.

Curry &amp Robison and I. R. Hinton, for appellees.

SAYRE J.

This is a bill for the partition of lands--260 acres--with a prayer in the alternative for a sale for division in the event a partition cannot be had, and was filed November 21, 1907. The land had been owned and occupied by A. P. Hamby, now deceased, and the parties are his heirs at law and his widow, the last named being made a party defendant to the bill, with the allegation that the interests of both complainants and defendants are subject to her right of dower. The bill has nothing to say in respect to the possession of the lands subsequent to the death of Hamby, nor anything in respect to the widow's claim or possession of homestead. It is alleged that decedent died March 20, 1907, owing no debts, and that there had been no administration of his estate. On November 2, 1908, a pleading was filed by all the defendants, which the parties and the chancellor seem to have concurred in treating as a single plea. In three paragraphs this plea set up in bar of the bill (1) that certain 160 acres of the land had been set apart by the probate court as a homestead exemption to the widow; (2) that the remainder of the tract was subject to the quarantine and dower rights of the widow; and (3) that the estate of Hamby, deceased, owed debts, for the payment of which there was no personal estate, and that an administrator had been appointed. We take this plea to mean that the probate court had undertaken to assume jurisdiction, and had appointed an administrator, and had allotted homestead exemption, subsequent to the filing of the bill in chancery for partition. The chancellor held the plea to be sufficient, and from his decree, the complainants have appealed.

It is proper to notice some aspects of the bill. The widow is not a co-tenant with the heirs, and they cannot maintain a bill for partition against her. Statutes for compulsory partition among tenants in common are for the purpose of avoiding the mischiefs which may grow out of vicious assertions by cotenants of their undoubted right to be in possession of every part of the lands held in co-tenancy to the harassment of others having the same right. Freeman, Co-Tenancy and Partition, § 440. To have partition the co-tenants must be entitled to possession. Co-tenants in remainder or reversion cannot maintain partitions. Nor can the heirs have partition pending the paramount right of the widow to quarantine dower, or homestead. Nor is it either the duty or the interest of the widow to proceed for the assignment of dower. She may await the action of heirs or personal representatives. Callahan v. Nelson, 128 Ala. 671, 29 So. 555. But creditors of the deceased owner, entitled to the present payment of their debts,...