Prince v. Hunter
| Decision Date | 19 September 1980 |
| Parties | Ronald PRINCE and Helen Prince Lyles v. Ned HUNTER. 79-328. |
| Court | Alabama Supreme Court |
Gould H. K. Blair, Birmingham, for appellants.
J. Richmond Pearson, Birmingham, for appellee.
This is an appeal from the trial court's decree ordering a public sale of certain jointly owned property.
On August 31, 1979, appellee, Ned Hunter, filed a petition for a sale for division of certain real property. The petition alleged that the property was owned jointly by appellee and appellants, Ronald Prince and Helen Lyles, as tenants in common. The petition named appellants as defendants, stated that the property could not be equitably partitioned or divided in kind, and The case was set for hearing on December 18, 1979. On December 7, 1979, appellants notified the court, by letter, of their desire to purchase appellee's interest in the property as provided in Code, § 35-6-100 (Cum.Supp.1979). The court subsequently rendered a decree ordering a public sale. The court did not hear any evidence in the case nor does the record contain any stipulation by the parties as to ownership or partitionability of the property. The decree provides as follows:
requested a sale for division. Included in the petition was a request that appellee be allowed to bid on the property at the public sale.
This cause was duly set on this date for a hearing on "Petition For Sale" and answer of Defendants.
At a pre-trial conference in chambers between counsel of record for the parties and the Court, the undisputed position of the counsel for the separate parties is that of desiring for their client or clients the ownership of the subject real property. Further, that the property cannot be equitably divided in kind.
Under the circumstances the separate rights of the Plaintiff and the Defendants can be protected by a sale of the property and a conversion of the property into cash, with the right to each party to "pay in" his proportionate share of the proceeds.
Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
The appellants moved for a new trial on January 14, 1980, claiming that they had complied with § 35-6-100, providing for purchase of a filing joint owner's interest, and were entitled to purchase appellee's interest. The motion for new trial was denied on January 18, 1980, and this appeal followed. 1
The sole issue is whether Code, § 35-6-100 (Cum.Supp.1979), is applicable in this case. Section 35-6-100 provides as follows:
Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not.
The statute ostensibly was drafted to protect joint owners from being divested of their property in a forced sale by allowing them the option to purchase the filing joint owner's interest. The operative words are "the court shall provide for the purchase (of the petitioner's interest) by the other joint owners ...." (Emphasis added.) Ragland v. Walker, 387 So.2d...
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Ex parte Gauntt
...intent to the contrary, the word 'shall' is to be afforded a mandatory connotation when it appears in a statute," citing Prince v. Hunter, 388 So.2d 546 (Ala.1980).). Nothing in § 6-3-5 indicates a contrary legislative intent, and the majority today has made no showing whatever that if the ......
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Roe v. Mobile County Appointment Bd.
...set out in § 17-10-7. "The word 'shall,' when used in a statute, usually indicates that the requirement is mandatory. Prince v. Hunter, 388 So.2d 546, 548 (Ala.1980)." Ex parte Brasher, 555 So.2d 192, 194 (Ala.1989). There are exceptions, of course, when "shall" is interpreted as directory.......
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Hyde v. State
...... "`The use of the term "shall" in this provision makes the payment of the filing fee mandatory. See Prince v. . 950 So.2d 351 . Hunter, 388 So.2d 546, 547 (Ala.1980). It was the obvious intent of the legislature to require that either the payment of ......