Jolly v. Knopf
| Decision Date | 11 January 1985 |
| Citation | 463 So.2d 150 |
| Parties | Helen Lugania Knopf JOLLY v. Carl KNOPF, et al. 83-232. |
| Court | Alabama Supreme Court |
Fred Blanton, Fultondale, for appellant.
Andrew M. Smith, Birmingham, for appellees.
On Rehearing Ex Mero Motu
The original opinion is withdrawn, and the following is substituted therefor.
Helen Jolly filed a complaint seeking a sale for division of four parcels of land owned by her and the six defendants as tenants in common. Mrs. Jolly alleged in the complaint that the real property could not be equitably divided or partitioned "and it would be to the interest of all of the said parties to sell said property for the purpose of division and distribution." The parties obtained their joint title under the will of their mother. Each received an undivided one-seventh interest in the parcels. The defendants moved to dismiss the action or, in the alternative, for summary judgment, on the grounds that the relief sought would defeat their mother's will, which expressly gave Carl Knopf, the executor and one of the defendants, "full power in his discretion ... to sell ... without any order of court therefor any real or personal property belonging to [the] estate." This motion was denied.
The defendants answered and denied that the property could not be divided in kind. Their answer was followed by a notice to purchase Mrs. Jolly's interest in the property. The notice was in accordance with § 35-6-100, Ala. Code 1975 (1984 Supp.). This was followed by a "motion for Court to Provide for Purchase of Filing Joint Owner's Interest," which essentially repeated the earlier notice and, in addition, alleged that the defendants were ready, willing, and able to make the purchase. On the date of the hearing on the defendants' motion to purchase, Mrs. Jolly filed in open court a motion to strike the defendants' motion to purchase, contending that § 35-6-100 is unconstitutional. In her motion, Mrs. Jolly also gave notice that she desired to purchase the defendants' interest in the same property. The trial court granted the defendants' motion to purchase Mrs. Jolly's interest and denied Mrs. Jolly's motion to strike. It thereafter appointed three commissioners, who were ordered to determine the value of the four parcels. § 35-6-101, Ala. Code 1975 (1984 Supp.). This they did. The commissioner's report was filed with the trial court on August 12, 1983, and was set for hearing on September 30, 1983. Pursuant to § 35-6-102, Ala. Code 1975 (1984 Supp.), the defendants timely paid into the court the amount of the purchase price for Mrs. Jolly's interest. Plaintiff Jolly, having previously filed a motion to strike the defendants' motion to purchase, thereupon filed a certificate stating that she was ready, willing, and able to purchase the interests of the defendants in the property and filed a commitment by her bank in the amount of $30,000.
Thereafter, the trial court entered final judgment, transferring title to the defendants and divesting Mrs. Jolly of title to the parcels. Mrs. Jolly appeals.
Section 35-6-100 states:
Mrs. Jolly first contends that this section is unconstitutional because it denies her equal protection of the law by giving only the defendants the alternative relief of purchasing the interest of the other cotenants.
We note that direct constitutional challenges to this statute have been made before in Madison v. Lambert, 399 So.2d 840 (Ala.1981), on second appeal, 428 So.2d 25 (Ala.1983), and Gibbons v. Allen, 402 So.2d 914 (Ala.1981). However, the challenges made in those two cases are distinguishable on the facts from the one made in the case before us.
In Madison, Lambert, a co-owner of jointly owned property, commenced an action for sale for division, and certain of the defendants, including Madison, filed a timely offer to purchase Lambert's interest in the property as well as the interests of all others seeking to sell, pursuant to § 35-6-100, supra. Lambert subsequently filed a motion to strike appellant's offer to purchase, alleging that § 35-6-100 violated the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In granting Lambert's motion to strike, the trial court held the section "patently unconstitutional" and issued a decree ordering a public auction for the sale of the property.
Lambert's argument that the statute deprived him of equal protection of the law by creating an arbitrary and capricious classification, in that defendants were preferred over plaintiffs, was rejected, and, in reversing the judgment of the trial court, this Court stated:
A careful reading of Madison indicates that the appellee, Lambert, was seeking to have the subject property sold for division at a public sale. There is no indication that Lambert desired to purchase any of the other co-owners' interests himself. Thus, the constitutional issues raised with regard to the statute and the corresponding rationale utilized by this Court in resolving those issues, were made solely within the context of plaintiff Lambert's wanting to have the property sold publicly. Therefore, the equal protection issue addressed in Madison could be stated thusly: Whether § 35-6-100 was an unconstitutional restriction on a plaintiff's statutory right to have a public sale for division of unpartible lands by preferring a co-owner defendant's right to purchase the plaintiff's interest over the plaintiff's right to insist on a public sale.
In Gibbons, the Court addressed the same issue. In that case, the trial court granted the plaintiff's and cross-plaintiff's motion to strike Gibbons's request to purchase. The plaintiffs alleged that § 35-6-100 was unconstitutional on the grounds of equal protection. The cross-plaintiffs alleged similar grounds, but also charged that the statute destroyed the rights of tenants in common, at their election, to a sale at public outcry to the highest and best bidder, or to a private sale in a free market. The trial court reasoned that there was an equal protection violation in that both the plaintiffs and defendants belonged to the same class, but were treated unequally in that the statute allowed only the defendants to purchase the property.
In reversing the trial court's judgment in Gibbons, we spoke of the equal protection issue as follows:
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Ex parte Melof
...Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 171, 174 (Houston, J., concurring in the result) (same). 11. See, e.g., Jolly v. Knopf, 463 So.2d 150, 153 (Ala.1985) ("We hold ... the statute [Ala. Code 1975, § 35-6-100] violates the equal protection provisions of the Constitution of this s......
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