Letcher v. Allen

• Decision Date: 23 January 1913
• Citation: 60 So. 828,180 Ala. 254
• Court: Alabama Supreme Court
• Parties: LETCHER v. ALLEN ET AL.

60 So. 828

180 Ala. 254

LETCHER v. ALLEN ET AL.

Supreme Court of Alabama

January 23, 1913

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by Annie Bettie Allen and others against D. C. Allen and his children, William and Marjory, for partition of land. From a decree overruling demurrers to the bill, the minors appeal by their guardian ad litem, J. T. Letcher. Affirmed.

The bill is filed by all the heirs at law of Emily A. Allen against D. C. Allen and his children, seeking to elect and to take their undivided interest, to wit, a seven-eighths interest, as a moiety, and to hold it as such, and to create and set apart to D. C. Allen his one fifty-sixth interest in fee simple jointly with orators, and that the other moiety representing one-eighth, be set apart to him, the said D. C Allen, for life, with remainder as mentioned in the will. The bill also seeks to have a decree fixing the charge in favor of orators and said D. C. Allen for $2,000 advance under the will against such property as may be set apart to represent the undivided one-eighth interest now owned by said D. C Allen for life, with remainder as described in said will, or such other order or decree made in the premises as would secure or obtain the payment of the said $2,000.

J. T Letcher, of Montgomery, pro se. Weil, Stakely & Vardaman and Steiner, Crum & Weil, all of Montgomery, for appellees.

ANDERSON J.

Under the terms of the will of Mrs. Allen, her son, David C. Allen, took a life estate to an undivided one-eighth interest in the land, with a remainder to his children who should survive him; and a court of equity has jurisdiction to partition the land in kind so as to give the said David C. Allen his part, and in which his children have a remainder, and to fasten their title to it and allot to the others, who have a fee, their seven-eighths interest jointly, if they so elect, and it can be so partitioned equitably. "Two or more tenants in common may unite in a bill against another cotenant, and may jointly elect to consider their several moieties as one moiety, and to have it set apart to them as one undivided fractional share of the whole." Smith v. Hill, 168 Ala. 317, 52 So. 949; Donnor v. Quartermas, 90 Ala. 164, 8 So. 715, 24 Am. St. Rep. 778; Freeman on Cotenancy, § 459; 30 Cyc. 240-261.

The common-law rule as to partition has been considerably enlarged and extended by our statute, and we have many authorities holding that, when the partition is sought by one having the right to compel same, all interests can be brought in, whether in præsenti or reversion. Of course, a reversioner with no right of possession, or to the present use and enjoyment, cannot maintain a bill as against those who are...