Long v. Long

• Decision Date: 13 January 1916
• Docket Number: 6 Div. 236
• Citation: 70 So. 733,195 Ala. 560
• Parties: LONG et al. v. LONG et al.
• Court: Alabama Supreme Court

70 So. 733

195 Ala. 560

LONG et al. v. LONG et al.

6 Div. 236

Supreme Court of Alabama

January 13, 1916

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Bill by Ida Long and others against J.T. Long and others. Decree for complainants, and defendants appeal. Affirmed.

Henry A. Jones, of Tuscaloosa, and C.H. Penick, of Phoenix, Ariz for appellants.

James Rice, of Tuscaloosa, for appellees.

GARDNER J.

Appellees and appellants are heirs at law of W.T. Long, deceased, and the bill is filed by the former against the latter for the purpose of obtaining a sale of certain lands described in the bill, for partition or division, which lands, it is alleged the said ancestor owned at the time of his death. It is alleged, also, that there are no outstanding debts of said estate, and that no necessity exists for an administration thereof, and proper averments are made that the lands cannot be equitably partitioned or divided among said tenants in common without a sale. The bill further shows that said W.T Long, in November, 1913, executed a conveyance to a portion of said lands (100 acres) to respondent J.T. Long, and in December, 1913, a conveyance of another 100 acres to respondent W.C. Long, copies of which deeds are made exhibits to the bill.

Mental weakness and infirmity on the part of said W.T. Long is alleged, and there is also entered a denial that the consideration named in either deed was paid to the grantor. It is then averred that the grantees were of strong and domineering character, and that they took advantage of the mental weakness of the grantor, procuring their deeds to said lands through the exercise of an undue influence over him and for a grossly inadequate consideration. A cancellation of these deeds is sought, but it is insisted that this cannot be had, as complainants are not in possession. The prime object of the bill is to obtain a sale of the lands described therein, for division among tenants in common, and the cancellation of these deeds is only incidental, and designed to make the partition more effective. The following quotation from Brown v. Feagin, 174 Ala. 438, 57 So. 20, is applicable here:

"The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of or against tenants in common, and the equity of the bill filed for either purpose is founded on the community of title or interest in the several parties complainant and defendant. Tindal v. Drake, 51 Ala. 574, 578; Marshall v Marshall, 86 Ala. 383, 388, 5 So. 475. And, this being true, it is immaterial for the purposes of such a bill whether complainants or defendants have the possession, or that none of them have it. Gore v. Dickenson, 98 Ala. 363, 11 So. 743, 39 Am.St.Rep. 67; Berry v. Webb, 77 Ala. 507." See also section 5232, Code 1907.

It also appears from the bill that after the death of W.T. Long the widow conveyed her dower interest to one of the complainants for a valuable consideration; and the bill seeks to have the value of said dower interest paid to the grantee of said widow. Under the provisions of sections 2647, 2648, Code 1907, the dower interest of the widow may with her consent be sold, and the value of the same paid to her out of the proceeds of the sale. No reason appears, therefore, against the course here...