Russell v. Stylecraft, Inc.

• Decision Date: 11 February 1971
• Docket Number: 6 Div. 741
• Citation: Russell v. Stylecraft, Inc., 244 So.2d 579, 286 Ala. 633 (Ala. 1971)
• Parties: Betty Jo White RUSSELL et al. v. STYLECRAFT, INC., a Corp.
• Court: Alabama Supreme Court

Page 579

244 So.2d 579

286 Ala. 633

Betty Jo White RUSSELL et al. v. STYLECRAFT, INC., a Corp.

6 Div. 741.

Supreme Court of Alabama.

Feb. 11, 1971.

Hanes & Hanes, Brimingham, for appellants.

Ira H. Kline and R. A. Norred, Birmingham, for appellee.

LAWSON, Justice.

The appeal is from a final decree of the Circuit Court of Jefferson County, in Equity, rendered in a proceeding instituted for the purpose of having land sold for division among joint owners.--s 210, Title 47, Code 1940.

Luther White died intestate in April, 1952, owning surface rights to twenty acres of land in Jefferson County, described as 'the South half of the Southeast Quarter of the Northwest Quarter of Section 8, Township 14, Range 2 West * * *'

Luther White was survived by his widow, Audrey White, and ten children, Betty Jo White, Garland White, Arthur White, Dovie White Gibson, Reva White, Jarrell White, Albert White, Robert L. White, John W. White, and Earl G. White, all of whom are complainants in this case except Albert, Robert, John and Earl.

Albert, Robert, John and Earl, along with the complainant Dovie White Gibson, by quitclaim deed conveyed their interests in the twenty-acre tract of land to their mother, Audrey White.

Subsequent thereto, five parcels were carved out of the twenty-acre tract by Audrey White for building sites. Audrey White conveyed all of her right, title and interest in and to Parcels 1, 2, 4 and 5 and retained Parcel 3 for her own use. She conveyed her right, title and interest in Parcel 1 to Earl White, in Parcel 2 to John White, in Parcel 4 to Arthur White, and in Parcel 5 to Albert White.

Dwelling houses were constructed on each of the parcels with labor and materials furnished by Outdoor Development Company, Inc. The purported owner of each of the five parcels executed a mortgage on his or her parcel to Outdoor Development Company, Inc., to secure the price of the labor and materials which went into the construction of the dwellings. The dwellings substantially enhanced the value of the twenty-acre tract. Each of the mortgages was foreclosed and Outdoor Development Company became the purchaser of the five parcels under the power of sale contained in the mortgages. Outdoor Development Company conveyed all of its right, title and interest in and to the said parcels of land to Stylecraft, Inc., a corporation.

The complainants were all minors at the time the deeds and mortgages heretofore referred to were executed with the exception of Dovie White Gibson.

In their bill the complainants averred that each of them owned an undivided 1/10 interest in the five parcels of land and that the respondent, Stylecraft, Inc., owns an undivided 4/10 interest; that the parcels of land could not be 'fairly and equitably divided or partitioned among the joint owners thereof without a sale, inasmuch as said parcels are, separately and severally, building lots and not suitable for division, and that one or some of said parcels have a dwelling thereon incapable of being equitably divided or partitioned.'

Aside from the prayer for process and the prayer for general relief, the bill prayed, in effect, that the said five parcels of land be sold for division and partition 'between the said joint owners.'

The respondent, Stylecraft, Inc., filed an answer which it made a cross bill. In essence, the cross bill sought to have the court allocate or allot to the respondent-cross complainant the five parcels of land which the complainants-cross respondents in their original bill sought to have sold for division and to have the court allot to the complainants-cross respondents the remaining land in the South half of the Southeast quarter of the Northwest quarter of Section 8, Township 14, Range 2 West, Jefferson County, and to have such land partitioned In kind among the complainants-cross respondents. Demurrer interposed by the complainants-cross respondents to the cross bill was sustained. Thereafter, the respondent-cross complainant amended its cross bill and sought to make Audrey White, in her individual capacity, a cross-respondent. But she made no appearance. We see no occasion to summarize the averments added to the stating part of the original cross bill by the amendment. The prayer of the cross bill was amended as so to read in pertinent part as follows:

'* * * and cross-complainant prays that upon a final hearing, it will please the Court to extend its jurisdiction herein so as to grant partition of the whole property originally held in common by the heirs of Luther White, to wit, the S 1/2 of the SE 1/4 of the NW 1/4 of Sec 8 Tp 14 R 2W Jefferson County, Alabama. Surface rights only, and that the Court shall so partition said real estate in kind as to allot to the cross complainant those parcels described in Paragraph Two of the original Bill of Complaint as Parcels One, Two, Three, Four and Five. * * *'

Demurrer interposed by the complainants-cross respondents was sustained to the cross bill as amended.

The cause was submitted to the trial court for final decree on behalf of the complainants on their bill of complaint and a stipulation of facts and on behalf of the respondent upon its answer and a stipulation of facts.

In its final decree the trial court found that the complainants and the respondent are tenants in common of the five parcels of land to which reference has heretofore been made. It did not find that the parties to the litigation were tenants in common or joint tenants or joint owners of the remaining part of the South 1/2 of the Southeast 1/4 of the Northwest 1/4 of Section 8, Township 14, Range 2 West. Nevertheless, the trial court decreed as follows:

'That each of the said parcels (the five parcels to which we have heretofore referred) is improved with a dwelling house which makes it incapable of partition in kind, and so accordingly each of the same is hereby set aside and awarded to the respondent to be its sole property.

'That the remainder of the S 1/2 of the SE 1/4 of the NW 1/4 of Section 8, Township 14, Range 2 W, surface rights only, is due to be sold for division among the parties complainant to this cause, and the Register is hereby directed and ordered to advertise same for public sale for four consecutive weeks in a weekly newspaper in general circulation in Jefferson County, Alabama, and on the day specified to sell same at public outcry before the courthouse door in Jefferson County. The proceeds of such sale are to be divided between the complainants in this cause.'

The final decree contains the further provision:

'This cause as to subject matter and the parties is retained within the jurisdiction of the Court pending the conclusion of the partition and sale for division hereinabove designated.'

From the decree the complainants in the original bill appealed to this court.

The case is presented in this court, as it was in the lower court, on the theory that upon the death of Luther White his ten children became the owners in fee simple of the twenty-acre tract of land, free of any dower or homestead rights in his widow, Audrey White. For the purpose of this appeal, but for that purpose only, we treat the matter of ownership of the said twenty-acre tract of land as did the parties in the trial below.

As we have indicated, the stipulation of facts shows that five of the children, including Dovie White Gibson, conveyed their undivided interests in the twenty-acre tract to their mother, Audrey White. Accepting that statement as true, each of the six complainants did not, as alleged in the original bill of complaint, own an undivided one-tenth interest in the twenty-acre tract at the time the bill was filed. The discrepancy may result from the fact that Dovie White Gibson, one of the complainants, joined in the conveyance to her mother. We do not understand that, in this proceeding, Dovie White Gibson sought to avoid the effect of her joining in that conveyance, although the stipulation of facts contains the following language: 'Dovie White Gibson at the time of her signing the conveyance attached hereto was twenty year (sic) of age and a married woman. Since the date of said conveyance to the present date she has performed no act of disaffirmance.' The conveyance to which reference is made is that in which the five children joined in conveying their undivided interest in the twenty-acre tract to Audrey White.

In the case of O'Neal v. Cooper, 191 Ala. 182, 184--186, 67 So. 689, 690, 691, it was said, in part, as follows:

'(1) It is, of course, universally recognized that a cotenant may convey at his pleasure his undivided interest in all the lands held in common without the knowledge or consent of his companions in interest. Such a conveyance places the grantee in the deed in the same position that the grantor had previously occupied; no possible injury could result to the other cotenants in the tract.

'(2) The rule is further recognized that a cotenant has a right to a partition of the common property. As was said in the case of Gore v. Dickinson, 98 Ala. 363, 11 So. 743, 39 Am.St.Rep. 67: 'So, also, it is settled that neither the fact that inconvenience or injury will result, or mischief be entailed upon the property, or that a division may be embarrassed by difficulties, will deprive a cotenant of the right to demand a partition of the common property.'

'(3) In recognition of this right on the part of a cotenant, it is held by the decided weight of authority that a deed from a cotenant of a part of the land held in common cannot in any way operate to the prejudice of the other tanants in common. And it has therefore been held that the other tenants in common have a right to have the land partitioned unaffected by such deed. In such case, however, it is held that a court of equity will protect the rights of such purchaser, if it can be done without prejudice to the other cotenants.

'Speaking to this same subject, it was said in the case of Stark v. Barrett, 15 Cal. (361)...