Kelly v. Deegan

• Decision Date: 28 May 1896
• Citation: Kelly v. Deegan, 111 Ala. 152, 20 So. 378 (Ala. 1896)
• Parties: KELLY v. DEEGAN ET AL.
• Court: Alabama Supreme Court

20 So. 378

111 Ala. 152

KELLY v. DEEGAN ET AL.

Supreme Court of Alabama

May 28, 1896

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Suit by William Deegan against Annie Kelly and others for sale of land for partition. There was a decree confirming the sale and a subsequent decree dismissing petition of Annie Kelly, a life tenant, for division of proceeds between her and remainder-men. She appeals. Affirmed.

Gregory L. & H. T. Smith, for appellant.

George J. Sullivan and L. H. Faith, for appellees.

BRICKELL C.J.

The original bill was filed by the appellee William Deegan, to obtain a decree of the court of chancery for the sale of certain real estate situate in the city of Mobile, held by him and one Charles Farley, deceased, as tenants in common to effect a partition between them. Farley had died, and by his will had devised his undivided half part or interest in the real estate to the appellant, Annie Kelly, for life, and upon her death "remainder over in fee to Right Reverend Jeremiah O'Sullivan, and his successors in the bishopric of the diocese of Mobile, in trust, for the use and benefit of the Catholic Orphan Asylum in Mobile." The devisees were made parties defendant to the bill, and, on a final hearing on pleadings and proof, a sale of the real estate was decreed. The sale was made in pursuance to the decree. The appellee Deegan became the purchaser, and paid into court one-half of the purchase money-$10,500-and one-half of the costs. There were no exceptions to the report of the sale, and it was confirmed. The decree of confirmation contains this paragraph: "It is further ordered and decreed that the register, by proper deed, convey the lands in said report set forth to the said William Deegan, the purchaser at such sale. Out of the proceeds of such sale now in his hands, the register will retain the costs of this suit. The balance he will pay over to Annie Kelly, on her giving bond, with two good and sufficient sureties, in the sum of such balance, to be approved by the register, payable to the Right Reverend Jeremiah O'Sullivan, and his successors in the bishopric of the diocese of Mobile, in trust, for the use and benefit of the Catholic Orphan Asylum in the city of Mobile, on the death of the said Annie Kelly. The said Annie Kelly shall have twenty days to make such bond. On her failure to do so in such time the register will lend the same out on good real estate as security, so as to net, as nearly as possible, eight per cent. per annum, payable annually. The register will report his proceedings under this decree to the next term of this court." Thereafter the appellant filed her petition, alleging that she was entitled to have severed and set apart to her absolutely the value of the life estate of and from the proceeds of the sale of the real estate, and praying that the value of the life estate be ascertained and decreed to her. On a hearing the petition was dismissed, and from the decree of dismissal, and from the decree of confirmation of the sale, the appeal purports to be taken.

The two distinct decrees-the decree confirming the sale of the real estate, and the subsequent decree of dismissal of the petition of the appellant-cannot be joined, and by a single appeal introduced into this court for revision. Either decree is final, and will support an appeal; but the parties to the one would not be proper parties to the other. Deegan, the party obtaining the decree of sale, and the purchaser, would be an indispensable party to the appeal from the decree of confirmation, but would not be a proper party to the appeal from the decree of dismissal of the petition, for he is not a party to the petition, and has no right or interest involved or affected by the decree. There has been no objection taken to the appeal. If an objection had been made, as matter of right, the certificate of appeal was amendable by the appellant, so as to present either decree, as its subject-matter, for revision. The necessities of the case require an early decision of the question presented by the petition of the appellant, and we will proceed to its determination, without regard to the irregularity of the appeal.

While a court of equity had jurisdiction, concurrent with courts of law, to decree the partition of lands held by co-parceners joint tenants, and tenants in common, it was without jurisdiction to decree a sale of the lands, if the tenants, or either of them, were adults, and not consenting. Deloney v. Walker, 9 Port. 497. The statute (Code, § 3262) now confers the jurisdiction, concurrent with that of the court of probate, "to divide or partition, or to sell for partition," whether the tenants are adults or infants. The essential, controlling element of the jurisdiction is that the lands "cannot be equitably divided or partitioned" among the tenants. Code,§ 3253. When this fact exists, a sale at the instance of either tenant is matter of right, as actual partition at common...