McQueen v. Turner

• Decision Date: 12 February 1891
• Citation: 91 Ala. 273,8 So. 863
• Parties: MCQUEEN ET AL. v. TURNER ET AL.
• Court: Alabama Supreme Court

8 So. 863

91 Ala. 273

MCQUEEN ET AL. v. TURNER ET AL.

Supreme Court of Alabama

February 12, 1891

Appeal from chancery court, Butler county; JOHN A. FOSTER Chancellor.

Gamble & Powell, for appellants.

J M. Whithead, for appellees.

CLOPTON J.

The appeal is taken from the decree overruling demurrers to the bill as last amended, by which appellees seek to have the land therein described sold for partition. No assignment of error going to the interlocutory decree of October 31, 1889 can be considered, the time having expired within which an appeal could be taken therefrom, and no final decree having been rendered. There being several causes of demurrer assigned, we shall, for convenience and brevity, consider in this connection such as are cognate.

The first, second, and fifth grounds are that the bill fails to allege that complainants and defendants are joint owners or tenants in common, or what the interest of each is, and to set forth the jurisdictional facts. The original bill avers that Andy Smith, who died in 1864, owned the land at the time of his death, and states the names, ages, and residences of all his children, and heirs at law, who are made parties, either as complainants or defendants, and that each is entitled to a one-fourth interest. John Smith, one of the complainants, and Ella McQueen, a defendant, having died during the pendency of the suit, the children and heirs of the former are made complainants, and those of the latter defendants, by amendment; the husband of Mrs. McQueen being already a party to the original bill. The amendment alleges that the children of the deceased parties are each entitled to a third interest in the one-fourth interest of their respective parents, and that the husband of Mrs. McQueen is entitled to the use of his wife's interest during his life. The bill further avers that the land cannot be equitably divided without a sale thereof. Under section 1923 of the Code, which declares: "When an inheritance or share of inheritance descends to several persons they take as tenants in common, in proportion to their respective rights, unless it is otherwise provided by law,"-the allegations of the bill show that complainants and defendants are tenants in common; and, in connection with the description of the land, sufficiently set forth the facts to draw into exercise the jurisdiction of the probate court,-a court of statutory and limited jurisdiction in proceedings to sell real property for partition; a fortiori, when the court is one of general jurisdiction. Morgan v. Farned, 83 Ala. 367, 3 South. Rep. 798.

The sixth and eighth grounds of demurrer are based upon the averments of the amended bill, disclosing that the husband of Mrs. McQueen is entitled to the use of the undivided interest during his life. The contention is that, when one of the several tenants in common has only a life-interest, land cannot be sold for partition. In the absence of statutory provisions, the general rule is that neither at law nor in equity can partition be awarded when the entire common estate is in reversion or remainder. Wilkinson v. Stuart, 74 Ala. 198. The rule rests on the principle that possession actual or constructive, is requisite to a partition. It has no room for operation where one of several tenants in common has a life-estate, the others having a legal or equitable title and possession. The right of the owner of a life-estate in an undivided part of the property held in common to compel partition does not seem to have ever been questioned. The only doubt entertained was whether he could compel the remainder-men to unite with him in the suit, or compel a partition, which would be binding after the termination of his life-estate. The rule now permits the remainder-men to be made parties, so that their interests may be represented; and, if all the parties interested are brought before the court, and their interests are fairly represented, all estates, whether in possession, reversion, or remainder, may be bound by the decree. Gayle v. Johnston, 80 Ala. 395. Partition is a matter of right, and is authorized by the statute among joint owners or tenants in common holding the lands, without reference to the duration of the estate. It may be compelled as well against a life-tenant as obtained at his suit. The statute confers on the chancery court concurrent jurisdiction with the probate court "to divide for partition, or to sell for division or partition, any property, real, personal, or mixed, held by joint owners or tenants in common." It authorizes two modes,-actual partition, or partition by a sale of the property and division of the proceeds. By...