Marshall v. Marshall

• Decision Date: 21 February 1889
• Citation: 86 Ala. 383,5 So. 475
• Parties: MARSHALL v. MARSHALL.
• Court: Alabama Supreme Court

5 So. 475

86 Ala. 383

MARSHALL v. MARSHALL.

Supreme Court of Alabama

February 21, 1889

Appeal from chancery court, Lee county; S. K. MCSPADDEN, Judge.

Bill by James F. Marshall and others against Samuel Marshall and others. Defendants appeal.

J M. & E. M. Oliver, for appellants.

Richardson & Steiner, for appellees.

CLOPTON J.

The appeal is taken from a decree overruling a demurrer to a bill. Assuming the truth of its allegations, the facts are William B. Marshall died intestate in January, 1874, being at the time of his death a resident of Talbot county, Ga. He left an estate in Georgia, and owned, at the time of his death, a considerable quantity of land in Alabama, situated in several different counties. He left surviving him a widow and children and grandchildren. During his life-time he made unequal advancements to his children. Letters of administration on his estate were granted to James F. Marshall, one of his sons, by the court of ordinary of Talbot county. This administration has been finally settled, and the administrator discharged. On the settlement the assets, amounting to over $13,000, were distributed between the widow and the distributees, who file this bill. James F. Marshall was also appointed administrator of the estate in Alabama by the probate court of Butler county, in which some of the lands are located. His letters were afterwards revoked on the ground of non-residence, and another person was appointed administrator de bonis non, whose letters also were subsequently revoked, and no representative has been since appointed. In November, 1887, some of the heirs made application to the probate court of Butler county for an order to sell, for partition, the lands situated in that county. After legal notice to the parties, the court, in January, 1888, made an order of sale, and appointed commissioners to make the sale. The present bill was filed April 4, 1888, by appellees, for a partition of the lands among the heirs as tenants in common, and, as incidental and essential thereto, seeks to have the widow's dower allotted, and a sale of enough of the lands to pay the taxes due thereon, and to adjust and equalize the advancements.

In the absence of a statute, a court of equity has no power to effect a partition of lands between adult tenants in common, without their consent, by decreeing the sale because the lands cannot be equitably partitioned among them, or for any other reason. Lyon v. Powell, 78 Ala. 357. The jurisdiction to order a sale of lands for partition among adults was conferred, prior to the enactment of the present statute, upon the probate court. By section 3262, Code 1886, concurrent jurisdiction with the probate court is conferred on the chancery court, "to divide or partition any property, real, personal, or mixed, between joint owners or tenants in common." Notwithstanding the chancery court had no authority to sell the lands of adults, the difficulty of making partition was no ground for refusing relief. When exact or fair division was impracticable on a bill for partition merely, the court could compensate for any inequality by a pecuniary compensation charged on the land by way of rent or servitude. Also the court could direct an account of rents and profits received by one of the joint owners, and award compensation to a joint owner for improvements made by him, either by assigning to him that part of the land on which the improvements were located, or by setting off their value against the rents and profits. Horton v. Sledge, 29 Ala. 498; Ormond v. Martin, 37 Ala. 598. The court, in such case, acted on the familiar principle that, having acquired jurisdiction of the subject-matter on a special and original ground of equity, it will employ its powers to adjust the equities between the parties, growing out of their ownership and relation to the property, and the connection of their interests with those of their co-tenants, and with the general right or equity of the complainant.

It is insisted, however, that the jurisdiction of controversies as to advancements is conferred by the statutes on the probate court. This is true, but it does not follow necessarily that the power of the court of equity to equalize advancements when essential to complete relief and justice, is destroyed when the court has taken jurisdiction of the case under some recognized head of original jurisdiction. Though the statutes confer on the probate court cognizance of administrations, and the settlement of estates, with power to adjudicate the rights and interests of heirs and distributees, they do not operate to oust the original jurisdiction of courts of equity. When a court of equity takes jurisdiction of an administration, and it becomes necessary to distribute the assets, real and personal, among those entitled, it may decree an account of advancements for the purpose of complete and equal distribution. Key v. Jones, 52 Ala. 238. On the same principle, when the court takes jurisdiction for partition of lands, which the tenants in common acquired by inheritance from a common ancestor, who has made advancements to some of them, having the power to decree a sale for the purpose of partition, it...