Ruffin v. Crowell

• Decision Date: 23 March 1950
• Docket Number: 2 Div. 272
• Citation: 253 Ala. 653,46 So.2d 218
• Parties: RUFFIN et al. v. CROWELL et al. CROWELL v. RUFFIN et al.
• Court: Alabama Supreme Court

Page 218

46 So.2d 218

253 Ala. 653

RUFFIN et al. v. CROWELL et al.

CROWELL v. RUFFIN et al.

2 Div. 272.

Supreme Court of Alabama.

March 23, 1950.

Rehearing Denied May 18, 1950.

Vincent F. Kilborn, of Mobile, for appellant and cross-appellees.

Adams & Gillmore, of Grove Hill, for appellees and cross-appellant.

FOSTER, Justice.

This suit comes here in two aspects. Appellants in the main appeal were complainants added by amendment to the original bill in the trial court. The appeal by them is from a decree holding that they are not entitled to relief.

The original bill was filed December 23, 1942 by Jeff Crowell and his wife, Vaddie, and so far as material here the facts developed in the case are substantially as follows. Marion Crowell, Sr., a Negro resident of Choctaw County, died in 1933 leaving nine children or their descendants and 900 acres of land, upon which he had given a mortgage to one John Green. Soon after his death John Green began foreclosure proceedings and the heirs of Marion Crowell, deceased, or some of them, undertook to do something about it. They were Jeff Crowell, Marion Crowell, Jr. (referred to throughout the proceedings as Dock) and Clara Ruffin. On February 14, 1935, those three heirs with their respective spouses executed a mortgage to the Chatom State Bank on the land purporting to convey all interests in it, not merely their respective interests. On July 28, 1936, Dock and his wife, Odessa, executed another mortgage to the same bank on the same land and, on October 6, 1936, Jeff and Dock, and their respective wives, executed still another mortgage on the land to the Chatom State Bank. Upon the basis of that security, they obtained funds with which to pay and did pay the Green mortgage. Those mortgages to the bank were not paid when due and not bank, on May 27, 1939, filed suit to foreclose them and made as parties to that suit the mortgagors in said mortgages together with some, but not all, of the other heirs of the estate.

Prior to that time, and on October 6, 1936, Jeff gave a deed to his wife, Vaddie, conveying to her his interest in the land. Pending the foreclosure suit by the bank and, on August 14, 1939, Jeff and his wife, Vaddie, gave a deed to Odessa, who was Dock's wife, purporting to convey their interests in the land, which was then one-ninth. Dock also deeded his interest to his wife, Odessa.

The foreclosure suit proceeded to a final decree, resulting in a sale of the land in foreclosure of the mortgage and the purchase of it by the Chatom State Bank receiving a deed dated September 2, 1941. The decree found that the mortgage debt to the Chatom bank was incurred on behalf of all the cotenants to redeem the land from the Green mortgage and that the Chatom bank mortgage covered all interests of the cotenants in it. They all seem to have accepted that result, for there is no claim made by them on a different theory. On September 27, 1941, Odessa Crowell, the wife of Dock, received a deed from said bank conveying to her said property. Soon thereafter she and her husband sold some of the land and some of the timber and made a mortgage to the Choctaw Bank of Butler. At the time of the purchase of said land by Odessa she had received a deed from Dock and Jeff and Vaddie conveying their interests in the land to her, and was therefore a cotenant with the heirs, although she was not an heir. At that time Jeff had conveyed what interest he had first to his wife, Vaddie, and then by deed from them both to Odessa, so that at the time she received a deed from the Chatom State Bank Jeff had no interest in the land as an heir. Later two of the heirs, Mollie White and Clara Ruffin, conveyed their interest (one-ninth each) to Jeff. This was in October 1942.

As we have said, the present bill was filed by Jeff and his wife, Vaddie, December 23, 1942, making as parties Dock and his wife, Odessa. The purpose of the bill was to be allowed to participate with Odessa as tenants in common in the purchase by her of the outstanding title from the Chatom State Bank. None of the other heirs sought to exercise that right at that time. The suit came on for hearing and decree. On February 2, 1947, a decree was rendered dismissing the bill, but on motion for rehearing that decree was set aside and the bill was then amended by adding as complainants the persent appellants. They were first added simply as complainants without specification of their claim. On February 15, 1948, a substituted, rewritten bill was filed, taking the place of the original bill, and in it the present appellants, as added complainants, sought to exercise a similar right to that sought by Jeff and Vaddie in the original bill. The remaining heirs were made respondents and they seek no relief. The bill then sought a sale for division also. On February 21, 1949, a final decree was entered and, so far as immediate purposes are concerned, denied relief to the present appellants. The theory upon which that denial was predicated was that their claim as tenants in common to participate in the purchase which Odessa had made while she was likewise a tenant in common was barred by limitations on the theory that the original bill filed by Jeff and Vaddie did not prevent the principle of limitations from running against these appellants, and that limitations did run against them until they were made parties complainant and elected then for the first time to exercise such right.

So that the question presented on the main appeal is whether or not these appellants waited too long before declaring an election to exercise the right conferred upon them in equity to share in that purchase made by Odessa, and that is influenced by the question of whether the amendment whereby that right was for the first time asserted by them related back to the filing of the original bill.

There are several principles of law which are proper to be reviewed to ascertain the nature of a cotenant's interest, here material, and the forms of remedies open to him and we will undertake to state them as follows:

When an inheritance descends to several persons, they take as tenants in common. Section 9, Title 16, Code; Gore v. Gore, 250 Ala. 417, 34 So.2d 580; Hill v. Jones, 65 Ala. 214, 220. When one joint tenant dies before a severance, his interest does not survive to the other joint tenants, but descends and vests as if his interest had been severed and ascertained. Section 19, Title 47, Code; Gore v. Gore, supra. Tenants in common hold by several and distinct title, but by unity of possession. Hood v. Johnston, 210 Ala. 617, 99 So. 75; Thompson v. Mawhinney, 17 Ala. 362, 368, 52 Am.Dec. 176; Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322, 326, 68 So. 880, 15 A.L.R. 23; Warner v. Warner, 248 Ala. 556(8), 28 So.2d 701.

In an action for injuries to the possession they should all join, not sever. But there are causes of action in which they may sever and when they sever the recovery is only for the interest of the tenant suing. Pruitt v. Ellington, 59 Ala. 454; Holder v. Elmwood Corp., 231 Ala. 411(6), 165 So. 235; Southern Railway v. Hayes, 198 Ala. 601(9), 73 So. 945. For an injury to the property the remedy is severable. Some may join, but all need not. The recovery is for the interest of those suing. Lowery v. Rowland, 104 Ala. 420, 16 So. 88; Wood v. Montgomery, 60 Ala. 500. For an interest in money due under an implied contract, one may sue. Gore v. Gore, supra; Smith v. Wiley, 22 Ala. 396, 58 Am.Dec. 262. Also one may sue for his proportionate part of an amount due for use and occupation. Wood v. Montgomery, supra. When there has been a conversion of the personalty owned by tenants in common, they may sue jointly or severally either for the tort or on the implied promise for money had and received. Gore v. Gore, supra. A tenant in common can release or waive or transfer his interest without affecting the rights of others. Gore v. Gore, supra, Syl. (10). The right of cotenants to sue under circumstances stated above is joint and several. Gore v. Gore, supra, 250 Ala. at page 420, 34 So.2d 580. As against a stranger, one or more less than all, may recover the whole of the realty and the recovery inures to the benefit of all. Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So.2d 294.

Amendments in Actions at Law.

Section 239, Title 7, Code, authorizes, in actions at law the addition of parties plaintiff and defendant by amendment, but provides that amendments relate back to the commencement of the suit only when they relate to the same transaction, property, title and parties as the original. But a suit against one person cannot stop the running of a statute against another who is brought in by amendment. Spurling v. Fillinghim, 244 Ala. 172, 12 So.2d 740(4); Haynes v. Phillips, 211 Ala. 37(3), 99 So. 356; Roth v. Scruggs, 214 Ala. 32(7), 106 So. 182.

Amendments in Suits in Equity.

Rule 28(d) of Equity Practice allows an amendment by striking out or adding new parties, and the same rule (f) provides that such amendments shall relate back and become a part of the bill amended as fully as though the amendment had been incorporated in the bill when filed. Rule 43 of Chancery Practice, Code of 1923, provided that when an amendment is allowed, it shall be considered as introduced into the bill from the time of its allowance. (This extended back through several Codes.) The Act of September 22, 1915, page 705, section 3, General Acts 1915, provides that it shall not be necessary to obtain an order allowing an amendment in equity, but when filed it shall relate back and become a part of the bill as fully as though it had been incorporated in the bill when filed. That Act became section 6560, Code of 1923, and is the same as Equity Rule 28(f), supra. That rule has also superseded Rule 43 of the Code of 1923. The subject was completely covered by Rule 28 of Equity Practice, Code of 1940, Tit. 7 Appendix.

At a time when an act of the legislature...