Marshall v. Rogers

• Decision Date: 25 April 1935
• Docket Number: 2 Div. 58
• Citation: 160 So. 865,230 Ala. 305
• Parties: MARSHALL v. ROGERS et al.
• Court: Alabama Supreme Court

160 So. 865

230 Ala. 305

MARSHALL v. ROGERS et al.

2 Div. 58

Supreme Court of Alabama

April 25, 1935

Appeal from Circuit Court, Sumter County; Benj. F. Elmore, Judge.

Bill to sell lands for division by Robert L. Marshall against C.M.A Rogers and others. From a decree granting the prayer of respondents Ada Lee Starnes, Sally Lee Merrill, and Johnny Lee Norrell for partition, and ordering a sale of the remainder of the land, complainant appeals.

Reversed and remanded.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellant.

Graham & Graham, of Meridian, Miss., for appellees.

BOULDIN Justice.

The bill was filed for the sale of lands for division among tenants in common on the ground that the lands cannot be equitably partitioned in kind.

The tract of land, some 580 acres in area, lies in a rectangular body, some 1 5/8 miles long, east to west, 1/2 mile wide north to south, with one forty cornering with the main body at the northwest corner. Its chief value is in farm lands. Probably one-third to one-half has been in cultivation, now somewhat reduced. The quality and value vary from rich bottom to poor ridge lands. There are scattered bodies of timber of undefined areas and values.

The bill was filed by Robert L. Marshall, one of the tenants in common, having an undivided 31/350 interest in the property. There are 44 tenants in common, with fractional interests running into large figures, the least of which is 19/11200 undivided interest.

Without further detail it is manifest the property cannot be equitably divided in kind. The evidence makes a clear case for a sale for division.

Three of the respondents, owning in the aggregate 93/350 undivided interest, filed their joint answer alleging in effect that a sale under present depressed price conditions would entail great loss to them; that a division in kind can be made by laying off to them jointly a parcel equal to their interests, which "would not affect the other interested parties as prejudicially as it would these defendants in forcing their interest in said estate on the market at this time." These parties, styling themselves "petitioners," then pray for such partition, and express their consent to any decree the other parties may desire as to the remaining lands.

The trial court granted the relief thus prayed, appointed commissioners to lay off to such respondents "as one moiety" their 93/350 interest in the tract, and further decreed a sale of the residue for division among the other tenants in common.

Passing over any question of the jurisdiction of the court of equity to grant this form of relief (partition between groups, and sale of parcel allotted to one group) or the special equities which should appear, the relief granted is affirmative in character and not within the issues presented by bill to sell for division, in which the...