Redwine v. Jackson, 8 Div. 425

Decision Date30 June 1950
Docket Number8 Div. 425
PartiesREDWINE v. JACKSON et al.
CourtAlabama Supreme Court

Guin & Guin, of Russellville, and Rushton, Stakely & Johnston, of Montgomery, for appellant.

A. A. Williams, of Florence, and McDonnell & Jones and W. F. McDonnell, of Sheffield, for appellee Jackson.

LAWSON, Justice.

The appeal is by W. K. Redwine from a final decree of the circuit court of Colbert County, in equity, ordering that land be sold for division of the proceeds among tenants in common; that the proceeds be distributed one-fourth to complainant, W. K. Redwine, one-fourth to respondent T. R. Redwine, and one half to respondent, cross-complainant, Lenora Redwine Jackson; that a purported conveyance to complainant from his brother, R. C. Redwine, deceased, be annulled and vacated in so far as it is a cloud on the title of the respondent, Lenora Redwine Jackson, and that it be cancelled of record.

Mark D. Redwine died intestate on or about December 4, 1938, leaving a tract of land of approximately 960 acres. He was survived by his wife, Mollie Redwine, and by four children by a former wife, namely, W. K. Redwine, R. C. Redwine, T. R. Redwine, and Lenora Redwine Jackson.

The estate of Mark D. Redwine was administered in the probate court of Colbert County and in the course of administration approximately 320 acres of land were set aside to the widow, Mollie Redwine, as dower and homestead.

In the latter part of 1939 Lenora Redwine Jackson instituted proceedings in the circuit court of Colbert County, in equity, against her brothers, W. K. Redwine, R. C. Redwine, and T. R. Redwine, seeking a division in kind of the lands of Mark D. Redwine, other than that part set aside to the widow. While that proceeding was pending R. C. Redwine died testate, leaving all his property to his wife, Lela Redwine. Lela Redwine was substituted as a party respondent in the place of her deceased husband. A decree was rendered partitioning the land involved in that proceeding, approximately 640 acres, one-fourth to Lenora Redwine Jackson, one-fourth to W. K. Redwine, one-fourth to T. R. Redwine, and one-fourth to Lela Redwine, the widow of R. C. Redwine, deceased.

After the death of Mollie Redwine, this partition proceeding was instituted in the circuit court of Colbert County, in equity, by W. K. Redwine against his sister, Lenora Redwine Jackson, and his brother, T. R. Redwine.

Simply stated, the purpose of the bill was to secure the sale of the 320 acres of land which had been set aside to the widow, Mollie Redwine, for division of the proceeds among the complainant and respondents, as their interests are made to appear.

Under the pleadings and evidence one of the questions presented to the trial court was whether or not there was a necessity for the sale of the land, the respondents contending that it could be divided in kind. The trial court decreed that the lands could not be equitably divided in kind and ordered a sale. But that part of the trial court's decree is not questioned here and no further reference will be made in this opinion to that feature of the case.

As material here, the bill as amended averred in substance that the complainant and the respondents are joint owners or tenants in common in and to the suit property; that 'the complainant owns a one half undivided interest in said lands, less the oil and mineral rights in a one fourth undivided interest therein, which mineral and oil interests are owned by the respondent Lenora Jackson, same having been reserved by deed from R. C. Redwine to W. K. Redwine, dated July 5, 1939, and appearing of record in the office of the Judge of Probate of Colbert County, Alabama, in deed record No. 126, page 488. The respondent T. R. Redwine, owns a one fourth undivided interest in said lands and the respondent Lenora Jackson owns a one fourth undivided interest in said lands in fee simple and also, the oil and mineral interest in the undivided fourth originally owned by T. R. Redwine, and now owned by the respondent Lenora Jackson.' (Emphasis supplied) It is clear that the initials which we have put in italics were intended to be R. C.

The material part of the prayer of the bill as amended was, in substance, that the lands be sold and that the proceeds be divided in accordance with the interests of the parties to the suit as averred in the bill as amended.

The respondent, Lenora Redwine Jackson, filed her answer which she asked to be taken as her cross bill. She admitted that the complainant and the respondents are the owners of the suit property. She admitted that the interest of the respondent T. R. Redwine is correctly averred in the bill as amended, namely, an undivided one-fourth interest. She denied that the bill correctly averred her interest in the land and that of the complainant and averred that her interest in the land was a one-half undivided interest and that of the complainant was only a one-fourth undivided interest. She averred further, 'that the only interest of complainant in said lands is an undivided one fourth interest which he inherited from his father, Mark Redwine; that respondent is advised that complainant is claiming an additional one fourth interest in said lands owned by R. C. Redwine, now deceased, but respondent avers that such claim is unfounded and that the deed alleged to have been executed from R. C. Redwine to W. K. Redwine is wholly fictitious and void and was never legally executed and that complainant took nothing by reason of said fictitious, fraudulent and forged deed.'

As amended, the answer and cross bill of the respondent Lenora Redwine Jackson, in pertinent part, prayed as follows: 'That upon the final hearing of this cause your Honor will order, adjudge and decree that this Respondent is the owner of the legal title to an undivided one-half interest in the lands described in the bill of complaint; that W. K. Redwine owns an undivided one-fourth interest and T. R. Redwine an undivided one-fourth interest in said lands. This Respondent and Cross-complainant further prays that the alleged deed from R. C. Redwine to W. K. Redwine dated July 5, 1939 and recorded in Book 126 of deeds page 486 and again recorded Book 131 pages 550 and 551 of deeds, in the office of the Judge of Probate of Colbert County, Alabama, be declared null and void and constitutes a cloud on this Respondent's title and that the Register of this Court be ordered and directed to enter on each of the recordings of said deed that the same has been declared null and void by the decree of this Court.'

The complainant, W. K. Redwine, answered the cross bill of the respondent Lenora Redwine Jackson by denying the averments of the said cross bill.

The respondent, T. R. Redwine, in his answer, admitted the averments of the bill as amended in so far as it averred his interest in the suit property, but denied the averments as to the interest in the property owned by the complainant, W. K. Redwine.

So, under the pleadings, it was admitted that the complainant and each of the respondents owned an undivided one-fourth interest in the suit property, which they had inherited from their father, Mark Redwine, subject to the dower and homestead rights of their stepmother, Mollie Redwine.

The real controversy was between the complainant, W. K. Redwine, and his sister, the respondent, cross-complainant, Lenora Redwine Jackson. The subject of the controversy was the undivided one-fourth interest in the suit property which their brother, R. C. Redwine, had inherited from their father, subject to their stepmother's dower and homestead rights.

The complainant claimed ownership of that undivided one-fourth interest, except the oil and mineral rights, by virtue of a conveyance from his brother, R. C. Redwine, under date of July 5, 1939.

The respondent Lenora Redwine Jackson sought to show that no such conveyance was executed; that at the time of his death, their brother, R. C. Redwine, still owned the interest in the 960 acres which he had inherited from his father; that such interest under the terms of the will of the said R. C. Redwine went to his wife, Lela Redwine; that the said Lela Redwine, as the devisee of her deceased husband, received one-fourth of the 640 acres as a result of the 1939 partition proceedings; that the said Lela Redwine died testate owning the same interest in the 320 acres here involved as her husband, R. C. Redwine, had owned; that under the terms of the will of Lela Redwine this interest went to her mother, Mrs. Bobbie Ware, for life, with remainder to Lela Redwine's brothers, Richard T. Ware and George Willard Ware; that on November 4, 1943, the mother and brothers of Lela Redwine conveyed to the respondent Lenora Redwine Jackson 'the interest of R. C. Redwine, deceased, in the estate of his father, Mark D. Redwine and which interest R. C. Redwine devised to his wife, Lela E. Redwine, now deceased, and she, in turn, devised to the grantors herein.'

The material parts of the decree of the trial court may be summarized as follows: (1) that the complainant and the respondents were tenants in common of the suit property; (2) that each of the three parties to the suit owns an undivided one-fourth interest in the suit property by virtue of inheritance from their deceased father, Mark Redwine; (3) that the respondent, cross-complainant, Lenora Jackson, is also the owner of the undivided one-fourth interest in the suit property which was inherited by her deceased brother, Rufus C. Redwine, from his father, Mark Redwine, and devised by Rufus C. Redwine to his wife, Lela E. Redwine, and devised by Lela E. Redwine to her mother, Mrs. Bobbie Ware, for her life, with remainder to her brothers, Richard T. Ware and George Willard Ware, and conveyed by Mrs. Bobbie Ware, Richard T. Ware, and George Willard Ware to the respondent Lenora Redwine Jackson; (5) that the purported deed or contract from...

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