Keaton v. Terry

• Decision Date: 17 June 1891
• Citation: 93 Ala. 85,9 So. 524
• Parties: KEATON ET AL. v. TERRY ET AL.
• Court: Alabama Supreme Court

9 So. 524

93 Ala. 85

KEATON ET AL. v. TERRY ET AL.

Supreme Court of Alabama

June 17, 1891

Appeal from chancery court, Coffee county; JOHN A. FOSTER, Judge.

Bill filed by appellees, Sarah L. Terry et al., against appellants, M. A. Keaton et al., for partition. Partition decreed. Defendants appeal.

J E. P. Flournoy, for appellants.

W D. Robert, for appellees.

COLEMAN J.

Partition is a matter of right, and this right cannot be defeated by showing that a partition would cause inconvenience, or even injury, to the tenants in common, or some of them. By reason of the extensive powers of a court of chancery in suits for partition, a case will seldom arise where a court of chancery, through the principle of owelty, or some other appropriate order, cannot make an equitable partition. McEvoy v. Leonard, 89 Ala. 457, 8 South. Rep. 40 Freem. Co.-Ten. §§ 433, 507. It is equally well settled that a sale of lands for distribution is not a matter of unconditional right. Deloney v. Walker, 9 Port. (Ala.) 500. If one tenant in common prefers a sale of land for distribution, and his co-tenants object, a sale cannot be decreed except upon allegation and proof that the property cannot be fairly and equitably partitioned. The right of partition of lands, and right to have lands sold for purposes of distribution, do not rest upon the same facts and the averments which may be sufficient in the one case will not support the other. There may possibly be exceptional cases, where a partition cannot be made without, or, if attempted, might result in a total loss or destruction of the property, to which the general rule would not apply. The pleadings are carelessly drawn, and materially inconsistent and repugnant. At the close of the first paragraph of the bill, and after the lands are described, it is averred that "they cannot be fairly and equitably divided without a sale." The prayer of the original bill is that "if said lands cannot be equally and equitably divided between those entitled, then they pray for a decree for the sale of said lands," etc. The prayer of the bill as first amended is that the "court decree a partition or sale of said land, as prayed for in the original bill." The cause seems, then, to have been submitted on bill and answer for a decree in vacation. The answer of some of the respondents disclosed an adverse holding as to a part of the lands described in the bill; and the chancellor properly held he could not proceed further, in the then condition of the pleadings. In his opinion, in which the reason is assigned for setting aside the submission, the chancellor stated "This is not a bill to sell the land for division. It is for partition;" and, under section 3251, the submission was set aside, and the parties claiming adversely were ordered to litigate the disputed...