Mylin v. King

• Decision Date: 19 January 1904
• Citation: Mylin v. King, 139 Ala. 319, 35 So. 998 (Ala. 1904)
• Parties: MYLIN ET AL. v. KING.
• Court: Alabama Supreme Court

35 So. 998

139 Ala. 319

MYLIN ET AL. v. KING.

Supreme Court of Alabama

January 19, 1904

Appeal from Chancery Court, Talladega County; Richard B. Kelly Chancellor.

Bill for partition by Sarah R. King against Amos H. Mylin and George A. Hill. From a decree granting the relief prayed for and ordering a sale of the common property for division defendant Mylin appeals. Affirmed.

Knox Dixon & Burr, for appellant.

J. J. Willett and Alexander King, for appellee.

HARALSON J.

Complainant, Sarah R. King, filed her bill averring the tenancy in common with Amos H. Mylin and George A. Hill, of the premises described in the bill, each being the owner of an undivided third interest therein; that the land could not be fairly and equitably divided in kind between the joint owners, and that a sale thereof was necessary in order to effect its division. By an amendment of the bill, the facts relied on to show that the land was incapable of partition in kind, and, therefore, a sale was necessary for that purpose, are clearly and fully stated.

The original bill set out the existence of an executory contract between the parties, of date the 15th of May, 1900, by which, as averred, complainant advanced to and for said George A. Hill, the sum of $1,871.67, and prayed, in addition to the prayer for a sale of the premises for partition and a division of the proceeds of the sale among the joint owners, and for general relief, that a lien be declared in her favor against the interest of said Hill in said lands. By the amendment of the bill, all that part of it, including the prayer which related to the said contract of May 15, 1900, was stricken, leaving the bill as simply one for a sale for partition. That part of the original bill and its prayer which was stricken was of so easy identification as did not require it to be set out in hæc verba. Under the bill as it stood, after amendment, each of the three parties to it were averred to be tenants in common of a third interest in the lands, and, as stated, sought a sale for partition.

The defendants answered the bill, and denied that the property could not be equitably divided in kind. This question may be here disposed of and eliminated from further consideration, by stating that it has been made clearly to appear from the evidence, that the parties owned the property as tenants in common, each owning a third undivided interest, and that it was not susceptible of an equitable partition in kind. The averments of the bill as to this fact are fully sustained by, and without conflict in, the evidence. Defense is made, however, against the decree of sale on grounds to be now considered.

The defendant Mylin, the only one appealing, sets up in his answer,--to employ the statement of his counsel in brief,--"that Hill had no interest except to an equitable interest in the land; that he, Mylin, owned a third interest together with an interest in Hill's one-third interest; that the complainant had together with him purchased Hill's interest in this property and that the conditions under which they purchased it were such as prevented the complainant from filing a bill to sell for division, she agreeing jointly with Mylin to pay so much per year upon the purchase money, the legal title to remain in Hill until the same was purchased and that Hill had made a deed and filed the same in escrow in order to have the conditions thereof carried out; that he, Mylin, had performed the conditions of this agreement and that under the circumstances it would be inequitable to allow the complainant to sell this land for division, thus to deprive him of the right to purchase Hill's interest as he had agreed to purchase the same."

The defense grows out of an agreement entered into between the parties,--complainant, Mylin and Hill,--on the 2d of January, 1901, for the sale of his one-third interest in the lands in question by Hill, to complainant and Mylin on the terms therein mentioned, to become binding on the parties on the due execution thereof. This agreement so far as complainant was concerned, was never executed; but, by an agreement afterwards mutually had between her and Hill, and at his instance and request, as the evidence clearly shows, it was agreed between them, so far as they were concerned, that this contract should be rescinded and canceled and held for naught. This was competent to be done, the law being, that parties, may at pleasure, alter, modify, or rescind a contract, without any new consideration therefor, if the alteration, modification or rescission is supported by their mutual assent. 3 Brick. Dig. 132, § 146; Hembree v. Glover, 93 Ala. 622, 8 So. 660.

Mylin would not consent to rescind this agreement; but that had no effect on the right of Hill and complainant to do so. Between Mylin and complainant, in their obligations to Hill under this contract, it was several as well as joint. The effect of the cancellation of it by complainant and Hill, was to release complainant from Hill, and Hill from her, from its terms, leaving complainant as the owner of a third interest in the lands, with no interest in or right to Hill's third interest, and with the contract as between Hill and Mylin still in existence,--with Mylin already an independent owner of a third interest in the lands. If he performed his part of the contract with Hill, he became thereby the equitable owner of a third, at least, of Hill's third interest in them. In other words, the rescission between complain...