Neville v. Kenney

• Decision Date: 08 February 1900
• Citation: 28 So. 452,125 Ala. 149
• Parties: NEVILLE v. KENNEY.
• Court: Alabama Supreme Court

28 So. 452

125 Ala. 149

NEVILLE v. KENNEY.

Supreme Court of Alabama

February 8, 1900

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Bill by Clara Neville against James P. Kenney. From a decree dismissing the bill, complainant appeals. Affirmed.

The bill in this case was filed on December 14, 1898, by the appellant, Clara Neville, against James B. Kenney. The bill alleges that the complainant is the granddaughter of Frederick Fleming, deceased, who died intestate December 2 1865, while possessed of certain real estate therein described; that the complainant is the only child of August Fleming, who was one of the children of said Frederick, the other children being named; that John Lang, having been appointed as administrator of the estate of Frederick Fleming, deceased, filed a petition in the probate court of Mobile county on the 8th day of February, 1879, to subject said lands to sale for the payment of the debts of the deceased Frederick, as shown by a certain schedule designated as "Exhibit A." The bill then avers that the alleged debts, as shown in said Schedule A, were only the city taxes which had accrued upon the lands of the estate of said decedent, and were unpaid for the years 1875, 1876 1877, and 1878, amounting in the aggregate to $29.14, and state and county taxes for 1878 upon 30 acres of land in Mobile county, and a vacant lot in the city of Mobile amounting to $10.10; that said unpaid taxes constituted the only alleged debts of said estate; that such taxes accrued more than 10 years after the death of said decedent, and were not debts of said decedent, but were debts of the heirs of said decedent; that at the time said petition was filed the said administration had been in existence for more than 13 years, and all claims against said estate were barred; and that, whether that is so or not, the said administrator in said petition shows no debts of the said estate of said decedent for which said lands were liable to be sold as part of the estate of said decedent. It is averred in the bill that in the petition to sell said lands said administrator described the heirs of said decedent as Otto Fleming, of full age; Clara Lang, who was the wife of the said administrator; and Selma Drexler, former wife of Frank Drexler; and said administrator wholly omitted the name of complainant, who had succeeded by inheritance to the rights of her deceased father in said lands, and had become the owner of an undivided one-fourth interest in said lands; that no guardian ad litem was appointed by the probate court of Mobile county to represent complainant in said proceedings to subject to sale the above-described lands for the payment of said alleged debts; that the hearing of said petition of said administrator to sell said lands was set for April 2, 1879, and citation thereupon was issued only to Otto Fleming and Clara Lang; that interrogatories were filed to take the depositions of certain witnesses in support of said petition, but that no citation was ever issued to cross said interrogatories to any other party interested in the said estate than to Otto Fleming. The bill then proceeds to allege the setting of said matter for hearing, the hearing thereof, the decree of sale, and the sale thereunder to the respondent, and confirmation of said sale, and decree ordering the deed to the purchaser. It is further averred that all of the foregoing appears from the files and records of said cause in said probate court, to which reference is prayed to be made. Complainant then avers that she is the owner of an undivided one-fourth interest in the lands described in the bill of complaint, and that the respondent, James P. Kenney, is the owner of the remaining three-fourths interest in said lands, and that said lands cannot be equitably partitioned between your oratrix and said James P. Kenney. The prayer of the bill is for the sale, for the purpose of division between the alleged tenants in common. The defendant moved to dismiss the bill for the want of equity. Upon the submission of the cause the court rendered a decree granting the motion and dismissing the bill. From this decree the complainant appeals, and assigns the rendition thereof as error.

Fred'k G. Bromberg, for appellant.

Gregory L. & H. T. Smith, for appellee.

DOWDELL J.

The appeal in this case is prosecuted from the decree of the chancery court dismissing complainant's bill for want of equity on respondent's motion. The purpose of the bill is the sale of the land described for division between the complainant and respondent as tenants in common. The complainant claims title to an undivided one-fourth interest by descent from her grandfather, Frederick Fleming, deceased. The bill charges that the respondent acquired title to the land by purchase at a sale made by the administrator of Frederick Fleming, deceased, under a decree of the probate court of Mobile county. The petition filed by the administrator in the probate court for the sale of the land is made an exhibit to the bill, and it is charged that the name of the complainant, who was at the time an infant, was omitted from the petition as one of the heirs at law of the said Frederick Fleming, deceased, and that no guardian ad litem was appointed. It is also charged that the testimony was not taken in the cause as in chancery cases, as provided by the statute. It is here contended by the appellant, in the first place, that the petition filed by the administrator in the probate court shows on its face that the court never acquired any jurisdiction in the...