Hillens v. Brinsfield

• Decision Date: 19 November 1895
• Parties: HILLENS ET AL. v. BRINSFIELD.
• Court: Alabama Supreme Court

18 So. 604

108 Ala. 605

HILLENS ET AL. v. BRINSFIELD.

Supreme Court of Alabama

November 19, 1895

Appeal from probate court, Montgomery county; F. C. Randolph, Judge.

Proceeding by Emma Brinsfield against Charles Hillens and another. Judgment for petitioner. Defendants appeal. Affirmed.

On October 14, 1892, the appellee, Emma Brinsfield, filed her petition in the probate court of Montgomery county, asking for a sale for partition of certain specifically described lands. Charles Hillens and Kate Monfee were made parties defendant to this petition. In her petition the petitioner averred that she and her sister, Kate Monfee, were joint owners of the lands described in the petition, each owning an undivided one-half interest; that the land could not be partitioned without a sale; that one Charles Hillens was in possession of the land, and disputed petitioner's title to any part thereof, but that at the June term, 1892, of the circuit court of Montgomery county, the petitioner recovered a judgment in an action of ejectment against the said Hillens for the undivided one-half interest in said lands. The answer filed by Hillens and Kate Monfee averred that Charles Hillens had a life estate in the lands sought to be sold, and that Kate Monfee had a two-thirds interest in said land, while the petitioner's interest was one-third therein, after the death of said Hillens. It was further admitted in the answer that the judgment in ejectment was recovered by the petitioner against the said Hillens for an undivided one-half interest. and that Hillens was in possession of the lands but it was averred in the answer that Hillens and Kate Monfee had instituted a suit of ejectment against the petitioner for the recovery of all of said lands, which cause was pending at the time of the filing of the petition, and it was averred that an adverse claim or title is asserted by the respondents to the property. To this answer the petitioner filed a replication in which she denied that Kate Monfee had more than a one-half interest in the lands, or that Hillens had any life or other interest in the one-half interest claimed by the petitioner; and the petitioner further averred the suit in ejectment by her against Hillens, trial thereof upon the merits, and judgment therein in her favor, and that said judgment remained unreversed and of full force and effect. There were demurrers to this replication, but the decision renders it unnecessary to set them out in detail. Upon the hearing of the petition, upon the suggestion by the defendants of the adverse claim in themselves to the property sought to be sold, it was shown that the property was originally owned by one Marina Efa Cura, who was the mother of the petitioner and Kate Monfee, and at one time the wife of Charles Hillens; that said Marian Efa Cura conveyed the lands in controversy, by deed dated December 26, 1857, to the petitioner, Kate Monfee, and one Charles Cura, a brother of the petitioner and respondent Kate Monfee, but reserved the right to keep the lands during her lifetime. It was also shown that Marian Efa Cura died in September, 1886, and that Charles Cura, one of the grantees in the deed just mentioned died before his mother, leaving the petitioner and Kate Monfee as his only heirs. The petitioner also introduced in evidence the records of the probate court, which showed a marriage solemnized between Marian Efa Cura and Charles Hillens in January, 1858. It was also shown that at the June term, 1892, of the circuit court of Montgomery county, the petitioner recovered a judgment in ejectment against Charles Hillens for an undivided one-half interest in the lands involved in this controversy, and that, in the trial of said ejectment suit, Charles Hillens set up title in himself to the lands. The defendants, among other testimony, offered to prove by Kate Monfee that Charles Cura, one of the grantees in the deed, executed by Marian Efa Cura in December, 1857 had conveyed to Charles Hillens a life interest, and Kate Monfee a remainder, after the death of said Charles Hillens in his undivided one-third interest in said lands, but that said deed was lost or mislaid, and that although she had made diligent search for the deed, in all places where the same was likely to be found, she had not succeeded in finding the same. The petitioner objected to this evidence on the grounds (1) that the deed was the best evidence of this testimony; and (2) that Kate Monfee was incompetent to testify to the existence of said deed. The court sustained this objection, and to this ruling the defendants duly excepted. Upon the hearing of all the evidence, the court decreed that the claim of adverse possession was not well founded, and was not a bona fide assertion of an adverse claim to the property sought to be sold, and after having taken the testimony of two disinterested witnesses, as in chancery proceedings, further decreed that the lands described in the petition could not be equitably divided or partitioned without a sale thereof, and therefore ordered that a sale of said lands be made.

Charles Wilkinson, for appellants.

Thos. H. Watts, for appellee.

HEAD J.

Petition for sale of land for division among tenants in common alleging the statutory jurisdictional facts, and showing petitioner and respondent Kate Monfee to be tenants in common of the land, in equal interests. Before the petition was filed, respondent Charles Hillens had asserted an adverse claim to and possession of the land; but at the suit of petitioner, in an action of ejectment against Hillens, in the proper law court, she recovered of him possession of an undivided one-half interest. These facts are alleged in the petition, and Hillens, by reason of them, is brought in as a party defendant. Hillens and Kate Monfee jointly defend, and by plea or answer set up adverse claims to the land, and rely upon the provision of the statute that "no division or partition can be made under this article, when an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners, or of the judge of probate." Code, § 3251. We will dispose of the claim of Hillens further on. The adverse claim set up by Kate Monfee is that her interest in the land is an undivided two-thirds, in remainder or reversion, dependent upon a life estate in Hillens, and not a half interest, in possession, as alleged in the petition. This defense concedes that petitioner and respondent Kate are tenants in common, the difference between them being as the quantum of their respective interests. Equality of interests is not essential to the jurisdiction of the probate court to decree a sale for division; but it is claimed that the fact that defendant Kate claims a greater interest than that conceded to her by the petition, implies, if made in good faith, the assertion of an adverse claim, within the meaning of the statute. The issue thus presented leads us seriously to inquire whether or not the provisions of said section 3251 of the Code are legally applicable to petitions, under the statute, for the sale of lands of tenants in common for distribution,-whether or not they apply alone to proceedings for partition of lands. In the years 1803 and 1806 the territorial legislature, superseding the common-law writ of partition, enacted statutes providing for the partition of lands among coparceners, joint tenants, or tenants in common. These acts continued of force until the adoption of Clay's Digest, in 1843, and were, in substance, carried into that compilation, beginning at page 386 thereof, under the heading "Partition." As thus copied, there were 13 sections. The first section conferred upon any coparcener, joint tenant, or tenant in common of any tract or tracts or land within the state the right to apply to any one or more of the judges of the circuit courts of the state, or to any judge of the county court of the county wherein the lands lay, for partition of such lands, whereupon the judge was required to ascertain the number of shares or parts in which the lands were held by the owners, and to nominate three commissioners to make the partition; and he was required to give six weeks' notice, in a newspaper, of the application (describing the lands), and that he had nominated the three persons (naming them) to divide the lands, who would be appointed as such if proper objections were not made by a day specified. This application was not required to be made in writing. By section 2, no objections, by him held proper, being made, the judge was required to appoint the persons named, as commissioners, in writing, under his hand and seal, to make the partition, pursuant to the directions of the act; describing in the writing the tract or tracts to be divided, and the number of parts or shares into which it is to be allotted. On proper objections, other commissioners were to be appointed in their stead. By section 3 the commissioners were required to be sworn in a manner prescribed. By section 4 it was provided how they should proceed to make the division into shares; requiring, among other things, that "if the bounds of any tract or tracts, so to be divided, shall be controverted, the commissioners are hereby directed, if such controverted part is valuable, to separate the same from the uncontroverted part, and make partition of the tract or tracts, in such manner, that a proportion of the controverted part may be allotted to each share, as well as a portion of the uncontroverted part." By subsequent sections, detailed provisions were made for the direction of the commissioners in alloting to the several owners their shares by lot or ballot; the notice to be given by them; the production of evidence before them; their return, in writing, of their proceedings;...