McEvoy v. Leonard

• Decision Date: 11 June 1890
• Citation: 89 Ala. 455,8 So. 40
• Parties: MCEVOY ET AL. v. LEONARD ET AL.
• Court: Alabama Supreme Court

8 So. 40

89 Ala. 455

MCEVOY ET AL. v. LEONARD ET AL.

Supreme Court of Alabama

June 11, 1890

Appeal from chancery court, Mobile county; THOMAS W. COLEMAN, Judge.

The bill in this case was filed by the appellants, Maria E McEvoy and Jane Serda, against the appellees, who are brothers and sisters of the complainants. The bill is filed by the complainants as heirs at law of Christopher J. Leonard and Ellen Leonard, his wife, both of whom are deceased; and it is averred in the bill that they, the complainants, are the sisters of the whole blood of the respondents. It is then averred in the bill that the defendants in this bill contend that the said Ellen Leonard, their mother, left her last will and testament, which has been duly probated. This contention the complainants deny, and allege that the alleged will was absolutely void on account of not being properly signed and witnessed, and because the said Ellen Leonard was unduly influenced. The bill then alleges that the said Christopher owned and occupied the lots in controversy at the time of his death, and that the title thereto vested at once upon the death of said Christopher in the complainants and defendants as tenants in common; and the bill alleges how it was that the said Christopher owned the fee to the said lots at the time. It is then averred that some of the said defendants hold each of the said lots adversely to the complainants, and that these in possession will not account for the rents accruing therefrom. Upon these averments, the complainants then pray that the said will of Ellen Leonard be declared null and void; that the conveyance of the homestead by said Christopher to Kain in trust for Ellen Leonard be declared inoperative; that the repurchase of the other lot by Christopher from Forcheimer & Lassabe be established; that the cloud on the title to the lots be removed; and that the lots be sold for distribution among the heirs. The adult defendants and guardian ad litem demurred to the bill on the ground that the administrator of the estate of Christopher J. Leonard, who was also the executor of the alleged will of Ellen Leonard, was not made a party to the bill; that the bill seeks to establish title to certain property purchased from Forcheimer & Lassabe, and neither they nor their representatives are made parties; that the bill seeks to have the property mentioned sold for partition or distribution, and it is not averred that the said property can not be equitably divided without sale; because it is not averred that there are no debts of the estates of Christopher J. and Ellen Leonard; and because the bill is multifarious. In sustaining these grounds of demurrer, the chancellor rendered the following opinion and decree: "Stripped of its redundancy and confusion, the purpose of the bill is to have certain lots and parcels of land sold for distribution. The main difficulties which appear on the face of the bill and sought to be reduced before the sale can be effected, are three, namely: (1) The bill does not show that the property cannot be fairly divided without a sale. (2) A partition of the land adversely held by respondents. (3) A successful contest of the validity of the will of Ellen Leonard, under section 2000 of the Code, which has been probated in the probate court of Mobile county. These questions will be considered in the order stated. (1) Partition is a matter of right, and not one left to the discretion of the court. Sale of lands for distribution instead of partition of lands rests on altogether different principles. No tenant in common has the right to have the interest of his co-tenant sold, if the former can separate his interest from that of his co-tenant without injury to either. Therefore, it is necessary to allege and prove in a bill which seeks to sell for distribution, land held in common, and which relief is contested, that the lands cannot be fairly divided without a sale. (2) While courts of equity have always had jurisdiction of a bill for partition, its jurisdiction to sell for distribution is purely statutory, and but recently conferred. The chancery court, by statute, has the same jurisdiction to sell lands for distribution as the probate court, and no greater. The probate court cannot decree the sale of lands for distribution held adversely, neither can the chancery court. The adverse holding is not one which may be fraudulently preferred merely to defeat a sale, or one purely of law, or which may be determined as a conclusion from admitted facts, but, wherever the adverse holding rests upon disputed facts, it is such as will deprive a court of probate or chancery of jurisdiction to sell...