Lyons v. Jacoway

• Decision Date: 07 April 1921
• Docket Number: 7 Div. 124
• Citation: 205 Ala. 479,88 So. 597
• Parties: LYONS et al. v. JACOWAY.
• Court: Alabama Supreme Court

88 So. 597

205 Ala. 479

LYONS et al. v. JACOWAY.

7 Div. 124

Supreme Court of Alabama

April 7, 1921

Appeal from Circuit Court, De Kalb County; W.W. Harralson, Judge.

Bill by W.V. Jacoway against R.F. Lyons and others for the sale of real estate for division among the joint owners thereof. From a decree granting the relief prayed for, respondents appeal. Affirmed.

Hunt &amp Wolfes, of Ft. Payne, for appellants.

Isbell & Scott, of Ft. Payne, for appellee.

MILLER J.

The bill of complaint in this cause was filed by W.V. Jacoway against R.F. Lyons and J.M. Lyons and others to sell for division certain land therein described, of the parties to this cause, as joint owners or tenants in common, on the ground that it cannot be equitably divided or partitioned among them.

On the 7th day of April, 1893, Thomas G. Stewart and wife conveyed by deed to George S. Smith, trustee, for $3,300, the land described in the bill of complaint. The habendum clause reads: "To have and to hold to the said George S. Smith trustee, his heirs and assigns forever." The bill averred, and the proof showed, that George S. Smith, as trustee for use and benefit of himself and others, held said land and owned it on basis of $30,000 for the entire tract. And on the 1st day of June, 1893, said George S. Smith trustee, certified in writing, executed by him as trustee, that he held the land under the deed as trustee, and it was purchased and is owned on basis of $30,000 for the entire tract by the following named persons: George S. Smith, $10,000; Thomas G. Stewart, $10,000; N.R. Bardy, $1,000; J.G. McLaren, $2,450; Mrs. H.D. Benton, $200; Miss Ada Hubbard, $200; Mrs. J.P. Morris, $1,000; Lucy Whitney, $200; Zera Smith, $500; Geneva Pollard, $100; A.K. Hawks, $700; F.A. Ball, $200; Lewis Haigis, $200; Mrs. J.A. Wilder, $3,250.

The testimony shows that these parties, the beneficiaries, owned this land as joint owners or tenants in common in proportion to their interest as shown by the above valuation of the part of each.

This deed, with the certificate of ownership of the land made by the trustee, created a naked trust in said George S. Smith for the benefit of the owners named in the certificate. The legal title to the land passed to the beneficiaries by the deed and certificate of ownership. Hinton v. Farmer, 148 Ala. 211, 42 So. 563, 121 Am.St.Rep. 63; section 3408 of Code of 1907; Huntington v. Spear, 131 Ala. 414, 30 So. 787.

Some of the beneficiaries sold and conveyed their interest in the land to the complainant, and some sold and conveyed theirs to R.F. Lyons and J.M. Lyons, before this suit was commended. The complainant owns 6075/30000; R.F. Lyons and J.M. Lyons own 21375/30000; Zera Smith's heirs own 750/30000; F.A Ball's heirs own 300/30000; and Mrs. J.P. Morris owns 1500/30000 interest in the land. R.F. Lyons and J.M. Lyons mortgaged...