Pollard v. Jackson

• Decision Date: 22 January 1920
• Docket Number: 5 Div. 731
• Citation: 204 Ala. 31,85 So. 431
• Parties: POLLARD et al. v. JACKSON et al.
• Court: Alabama Supreme Court

85 So. 431

204 Ala. 31

POLLARD et al. v. JACKSON et al.

5 Div. 731

Supreme Court of Alabama

January 22, 1920

Appeal from Probate Court, Tallapoosa County; W.G. Carelton, Judge.

Petition by S.C. Jackson and others for the sale of certain lands for division, naming Olivia Pollard and others as respondents. From the decree, respondents appeal. Reversed and remanded.

D.W Crawford, of Dadeville, for appellants.

James W. Strother, of Dadeville, for appellees.

GARDNER J. (after stating the facts as above).

The motion to dismiss the appeal will be overruled. The decree from which the appeal is prosecuted confirmed the sale of lands in which the two married women who are here appellants were interested. They made affidavit in conformity with the statute. Acts 1915, p. 715, amendatory of section 2879, Code 1907. The guardian ad litem was authorized, under section 2866 of the Code of 1907, to prosecute the appeal without giving security for costs. The decree confirming the sale of the lands was a final decree, from which an appeal may be prosecuted, and on which appeal the entire proceedings may be reviewed. McQueen v. Grigsby, 152 Ala. 656, 44 So 961; Hendrix v. Francis, 83 So. 66; Pettit v Gibson, 201 Ala. 177, 77 So. 703. Therefore none of the grounds for the dismissal of the appeal are well taken.

The petition sought a sale for division of three separate tracts of land, two of which are located in Tallapoosa county and the third is situated in Macon county, entirely separate and distinct from either of the other two, and not connected therewith in any manner.

One of the grounds of objection to the confirmation of the sale was based upon the proposition that the court was without jurisdiction to order the sale of lands in Macon county, and this presents the first question for consideration here.

In proceedings of this character, the probate court is exercising limited statutory jurisdiction. Cruikshank v. Luttrell, 67 Ala. 318. Section 5222, Code of 1907, provides that property held by tenants in common may be decreed to be sold by the probate court of the county in which such property is situated, or, "in case of land lying partly in different counties, of either of such counties, when the same cannot be equitably divided or partitioned among them." The case of Turnipseed v. Fitzpatrick, 75 Ala. 297, would clearly indicate that the probate court was without jurisdiction in the instant case to sell the land lying in Macon county. In the later case of Matthews v. Matthews, 104 Ala. 303, 16 So. 91, the Turnipseed Case, supra, was overruled in so far as it held that a sale by the guardian of the real estate of his ward was void when had under an order of the court wherein the guardianship was pending, and when the lands were situated in another county. We construe the Matthews Case as approving the reasoning of the Turnipseed Case in so far as it would apply to ordinary cases involving the sale of lands for division among tenants in common.

In Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604, it was held that the two systems, that of partition between tenants in common and that of a sale of land for division among them, as provided by our statute, are separate and distinct. Yet there is a relation between the two which may be considered in connection with the question here for determination, as both systems relate to property owned by tenants in common seeking a division thereof. Section 5203 provides for partition among tenants in common on application made "to the probate court of the county in which the property is situate," and section 5204 makes provision where "partition is sought of a tract of land lying partly in different counties"; this latter section being very similar to the language of section 5222 here under review. Section 5212, Code 1907, provides for a sale of land for division if, after a decree for...