Martin v. Cannon

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 354
• Citation: 71 So. 996,196 Ala. 151
• Parties: MARTIN v. CANNON et al.
• Court: Alabama Supreme Court

71 So. 996

196 Ala. 151

MARTIN v. CANNON et al.

6 Div. 354

Supreme Court of Alabama

May 18, 1916

Appeal from Chancery Court, Cullman County; James E. Horton, Jr. Chancellor.

Bill by A.W. Cannon and others against W.G. Martin for the sale of realty and a distribution of the proceeds. Decree for complainants, and defendant appeals. Reversed, and decree rendered sustaining the demurrer, and cause remanded with leave to amend.

F.E St. John, of Cullman, for appellant.

A.A Griffith, of Cullman, for appellees.

ANDERSON C.J.

The bill in this case seeks a sale of certain real estate and a distribution of the proceeds between the owners thereof. The bill alleges that the respondent owns an undivided three-fourths interest in the land, and that the three complainants own a one-fourth interest in said land. The bill does not aver, however, the respective interests of the complainants in and to the said undivided one-fourth interest, and, from aught that appears, their respective interests may be different and unequal, and pleading, when assailed upon demurrer, must be construed more strongly against the pleader, and this identical point was made by ground 4 of the respondent's demurrer. From the averments of this bill, the court would not know how to distribute the proceeds of the sale as between the three complainants, as it does not show that they own equally the undivided one-fourth interest, and inferences and intendments that they do cannot be indulged in considering a demurrer to the bill. The case of Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604, cited and relied upon by counsel in support of the sufficiency of the bill does hold that section 5205 of the Code of 1907, as to the contents of a petition for the division or partition of land in kind, does not apply to proceedings under subsequent sections for the sale of land for division, but we think that said case holds and directs that a petition or bill for a sale for distribution must set forth the respective interests of the owners of the land. We quote from the opinion:

"In all judicial proceedings, the essential facts constituting the cause of action must appear, in a way that an issue can be formed upon them, and so that the court can proceed, in an intelligent manner, to observe and enforce the rights of the parties. When we read and analyze the several provisions of the several sections of this system, we see plainly that no case

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