Roy v. Abraham

• Decision Date: 09 February 1922
• Docket Number: 3 Div. 543.
• Citation: Roy v. Abraham, 207 Ala. 400, 92 So. 792 (Ala. 1922)
• Parties: ROY v. ABRAHAM ET AL.
• Court: Alabama Supreme Court

92 So. 792

207 Ala. 400

ROY v. ABRAHAM ET AL.

3 Div. 543.

Supreme Court of Alabama

February 9, 1922

Rehearing Denied April 27, 1922.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Bill by James D. Roy against Adolph Abraham and others to enforce the judgment lien on an undivided interest in real estate and for the sale of same for partition or division. From a decree sustaining Abraham's demurrers and dismissing the bill as to the other defendants, complainant appeals. Affirmed.

W. A Gunter, of Montgomery, and C. E. O. Timmerman, of Prattville for appellant.

Stewart Mackenzie and W. M. Blakey, both of Montgomery, for appellees.

MILLER J.

James D. Roy in 1913 recovered a judgment against Adolph Abraham. A certificate of it was duly recorded in the probate office of Montgomery county in that year. Adolph Abraham, Joseph Zadek Isadore Zadek, and Rosa Sacks own jointly [one-fourth each] a house and lot in Montgomery. Adolph Abraham in April, 1919, was adjudicated a bankrupt, and was discharged. He did not schedule his interest in this house and lot. In June, 1921, after his discharge, he filed petition in the court, averred failure to schedule the property, asked that it be done, and that it be set apart to and allowed him as a homestead, exempt from the payment of debts, and that he was then in possession of it. The house and lot were by the court allowed him as a homestead, exempt from the payment of debts.

This bill is filed by James D. Roy against Adolph Abraham and the three other owners of the house and lot to collect the judgment through his lien on Abraham's one-fourth interest, by selling the entire property for division among all the joint owners, because it cannot be equitably partitioned among them; and to have one-fourth of the proceeds, Abraham's part, applied on the judgment, and the balance, if any, paid to him, and to have the residue (the other three-fourths) of the proceeds divided among the other joint owners according to their interests and rights. Abraham demurred to the bill, and the other defendants moved to dismiss the bill as to them. The demurrers of Abraham were sustained, and the motion to dismiss by the other defendants was granted by the court. James D. Roy appeals from and assigns this decree as error.

James D. Roy is the sole party complainant. Under the averments of the bill his only interest in the property is a judgment lien on the one-fourth interest of Adolph Abraham.

Section 5231, Code 1907, reads:

"The chancery court shall have jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common, whether the defendant denies title of the complainant or sets up adverse possession or not."

The real estate desired to be sold for division must be held by joint owners or tenants in common. The right to sell land for distribution exists in favor of and against tenants in common or joint owners. The complainant must aver facts showing that he is a tenant in common, or a joint owner with the respondents, for his bill to give the court jurisdiction. Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A. L. R. 23; In Russell v. Beasley, 72 Ala. 190, the court said:

"It is required of the complainants, however, that they should show a clear title to an undivided interest in the lands sought to be partitioned."

In Berry v. T. & C. I. & R. R. Co., 134 Ala. 622, 33 So. 9, the court said:

"Indeed it is required of complainant that it should show a clear title to an undivided interest in the lands sought to be partitioned."

In Brown v. Feagin, 174 Ala. 438, 57 So. 20, the court said:

"The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of and against tenants in common, and the equity of the bill filed for either purpose is founded on the community of title or interest in the several parties complainant and defendant."

In Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 325, 68 So. 881, 15 A. L. R. 23, this court said:

"A cotenancy is an indispensable element of every compulsory sale for division under our statutes; and that, if there is no cotenancy, there is no right to a sale for division."

In Arnett v. Bailey, 60 Ala. 435, Justice Stone wrote:

"The bill, however, prays for partition of the lands *** for that purpose, the court of chancery has jurisdiction, if the complainant has averred a clear title to an undivided interest in the lands."

In Kelly v. Deegan, 111 Ala. 152, 20 So. 378, Chief Justice Brickell wrote:

"The essential, controlling element of the jurisdiction is, that the lands 'cannot be equitably divided or partitioned' among the tenants. *** When this fact exists, a sale at the instance of either tenant is matter of right, as actual partition at common law was matter of right, without inquiring whether it is of benefit or injury to the other tenants."

The complainant must aver and prove that he is a joint owner or tenant in common of the real estate to give the court jurisdiction under the statute to compel by decree a sale of it for division on the ground it cannot be equitably partitioned. The right to compel a sale of real estate for division, because it cannot be equitably partitioned, is given to either of the joint owners or to either of the tenants in common of the real estate. If the sole complainant is neither a joint owner nor a tenant in common of the real estate, then the court on his application has no jurisdiction to divide or partition or to sell for partition the property. The respondents each own, under the averments of the bill, an undivided one-fourth interest in the real estate, and are in possession of it. The complainant owns under the bill a judgment lien on the undivided one-fourth interest of Adolph Abraham, one of the defendants, in the real estate. Is the complainant a joint owner or tenant in common with the respondents in this real estate? In Bell v. Goetter, Weil & Co., 106 Ala. 471, 17 So. 711, Chief Justice Brickell approvingly quoted:

"Now, it is not understood that a general lien by judgment on land constitutes, per se, a right in the land itself. *** In short, a judgment creditor has no jus in re, but a mere power to make his general lien effectual, by following up the steps of the law, and

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