Johns v. Johns

• Citation: 93 Ala. 239,9 So. 419
• Parties: JOHNS ET AL. v. JOHNS ET AL.
• Decision Date: 09 June 1891
• Court: Supreme Court of Alabama

9 So. 419

93 Ala. 239

JOHNS ET AL. v. JOHNS ET AL.

Supreme Court of Alabama

June 9, 1891

Appeal from chancery court, Cleburne county; S. K. MCSPADDEN Chancellor.

Merrill & Bridges, for appellants.

Aiken & Burton, for appellees.

STONE C.J.

The complainants, three in number, and the defendant William J Johns, together with others not sued, were tenants in common of the tract of land described in the bill. The title accrued to them under the will of Thomas Johns, Sr., who died in 1870. William J. Johns was named executor in the will, but he never qualified as such. The will was regularly probated and established in Cleburne probate court soon after testator's death. No question is raised on the validity of the will, nor is it denied that the testator owned the lands at his death. All the parties originally claimed title under Thomas Johns, the testator. Under the will of Thomas Johns, his surviving widow took a life-estate, unless she married again, in which event her title was to cease. She did not marry a second time. At her death or marriage, the lands, under the devise, were to go to seven or eight named remainder-men, some of them children, and others grandchildren, of the testator. Two of the complainants are grandchildren. They are brothers, and, jointly, were to have one share, equal to that of the children. One of the complainants, Mrs. Boyd, and William J. Johns, one of the defendants, are children, entitled to take under the will. The complainants are residents of the state of Texas, and have been such ever since 1875, if not before that time. The reason given in the bill why the other devisees in the remainder were not made parties to the suit is that the said William J. Johns had purchased and was the owner of their several interests under the will of Thomas Johns, Sr. This averment is admitted, and is proved to be true. In 1875 the widow went to Texas, and remained among her children, living there until 1883 or 1884, when she died. What disposition, if any, she made of her life-estate when she went to Texas, is not made a subject of averment or proof. The lands were assessed for taxes in 1877 to James M. Johns, son of testator, and one of the devisees in remainder. It is not shown that he was in possession, nor is it any where shown why the lands were assessed to him. In May, 1878, they were sold for the taxes of 1877, and William J. Johns became the purchaser, bidding nine dollars and some cents, the amount of the taxes and charges. At that time a son-in-law of William J. Johns was in possession. Before the end of the year 1877, William J. Johns went into possession, and has retained it ever since, with the exception of parts of the tract, since that time sold by him to Thomas Johns, Jr., his son, and to one Cook. They are made defendants to this bill. In May, 1880, two years after the tax-sale, the judge of probate of Cleburne county executed to William J. Johns a tax-title to the lands. The following are among the uncontroverted facts in this case: James M. Johns, one of the devisees in remainder, executed a deed, bearing date October 15, 1877, conveying his interest in the lands to William J. Johns. This deed is on the recited consideration of $70. Another deed was made to said William J. Johns by one Brown purporting to convey the interest of his wife in said lands. His wife was Mary Elizabeth, née, Johns, one of the devisees in remainder. This deed is dated December 8, 1879, and is on a recited consideration of $125; assumes to convey to William J. Johns all the interest of W. T. Johns in said lands. The name of W. T. Johns is not found in the will, but Thomas Walker Johns, son of J. L. Johns, is one of the devisees in remainder,-the same person, possibly. William J. Johns testified that all these purchases were made before the tax-sale in May, 1878, although two of the deeds bear later dates. We have now stated all the facts we consider material. The bill in this case was filed February 22, 1884,-nearly 11 years after the tax-sale, nearly 9 years after the tax-deed was executed, and some 5 years after the death of the widow, the life-tenant under testator's will. The complainants, as we have seen, are three of the devisees in remainder, who have resided in the state of Texas ever since 1875. The bill seeks to assert the interest of complainants in the land, to have the tax-deed declared inoperative against their title under the will, and to have the lands sold for division. It avers that they cannot be equitably divided without a sale, and prays a sale for division among the devisees. Mrs. Boyd claims one-sixth of the land, and the other complainants one-twelfth each. On the final trial on the merits, the chancellor dismissed the bill, "but without prejudice to their filing another bill, or seeking any further remedy in this or any other court, as they may be advised."

The defense assumed several forms: First. That chancery has no jurisdiction to order the sale of lands for division among the tenants in common. Only the probate court, it is contended, can grant such order. Many decisions of this court have announced that doctrine. Deloney v. Walker, 9 Port. (Ala.) 497; Oliver v. Jernigan, 46 Ala. 41. That rule, however, was changed by statute before this suit was commenced. The Code of 1886, § 3262, declares that "the chancery court shall have concurrent jurisdiction with the probate court to divide or partition, or to sell for division or partition, any property, real, personal, or mixed, held by joint owners or tenants in common." Second. It is contended that this property was adversely held by William J. Johns, and those claiming under him, before and at the time this suit was brought, and that complainants should have first established their title by suit at law, before claiming partition or sale for division. A sufficient answer to this objection is found in the facts of this case. William J. Johns claimed title to the lands under a tax-sale made in May, 1878, and deed made to him pursuant to his purchase at that sale. That sale was made under the revenue law, approved March 6, 1876, (Sess. Acts 43.) Section 22 of chapter 8 of that statute (page 75 of the Session Acts) gives the form of deed to be executed to the purchaser of lands at tax-sale; and section 23, p. 77, declares that deeds, "when substantially thus executed and recorded in the...