Salter v. Odom
| Decision Date | 19 December 1940 |
| Docket Number | 1 Div. 126. |
| Parties | SALTER ET AL. v. ODOM ET AL. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 23, 1941.
Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.
Suit in equity by Warren E. Odom and others against Hattie V. Salter Cora H. Plemmons, and another, to sell lands for division of the proceeds among joint owners or tenants in common. From a decree overruling a demurrer to the bill, the named respondents appeal.
Affirmed.
Gordon Leigh, Leigh & Gordon, of Mobile, for appellants.
D. R Coley, Jr., of Mobile, for appellees.
The bill in this cause was filed for the sale of certain lands in Mobile County, to effectuate partition amongst the joint owners or tenants in common, to require an accounting from two of the tenants in common for timber cut and sold by them from the jointly owned lands, and for other incidental relief. It is in no sense a bill to enforce statutory redemption after foreclosure.
It appears from the bill that the complainants, seven in number, and the three respondents, were the heirs at law and next of kin of Mary J. Odom, deceased, who died intestate in Mobile County, Alabama, on May 14, 1938; that at the time of her death, the said Mary J. Odom was seized and possessed of the lands described in the bill, consisting of more than 600 acres, and which it is sought to have sold for partition, and that the complainants and respondents, in equal right, acquired said lands by inheritance from the said Mary J. Odom, deceased.
It also appears from the bill that, at the time of the death of said Mary J. Odom, the said lands were encumbered by a mortgage in favor of one J. Tyler Turner for the sum of $400; that said property was of value greatly in excess of the amount due and owing on said mortgage.
It is averred in the bill that on, towit, December 9, 1938, B. C. Pringle and M. J. Plemmons, the latter the husband of the respondent-appellant Cora H. Plemmons, procured the transfer of said mortgage from said J. Tyler Turner, and within less than a month thereafter foreclosed said mortgage, and purchased the property at said foreclosure sale. That in July immediately following said foreclosure, two of the complainants, Warren E. Odom and Fannie L. Williams, applied to the said Pringle and Plemmons to redeem said lands, and it was agreed between said parties that a deed or conveyance would be executed by said Pringle and Plemmons, and presented at the Citronelle State Bank, and upon which there would be paid the amount required for redemption of said property from said foreclosure; that notwithstanding said agreement the said Pringle and Plemmons failed to execute said deed and permit said redemption, the said Pringle and Plemmons stating in reply to inquiry, that the property had been redeemed by the respondents Hattie V. Salter and Cora H. Plemmons. It is well here also to state that it appears that the said Hattie V. Salter was the administratrix of the estate of said Mary J. Odom, deceased, as well as one of the co-tenants of said property, and the said Cora H. Plemmons was and is another of said co-tenants, and they are the two appellants on this appeal.
The bill further charges that after the redemption of said property by the appellants, they cut and sold a "great quantity" of timber from said lands, the value of which amounts to more than the indebtedness secured by said mortgage, and required for the redemption of said property from the foreclosure sale. The bill shows that the lands cannot be fairly and equitably divided or partitioned amongst the joint owners or tenants in common by metes and bounds without a sale thereof.
In addition to the prayer for the sale of lands for division, the bill prays for an accounting by said Hattie V. Salter and Cora H. Plemmons of all timber cut, removed and sold by them from said lands; that they be charged with the amount received by them from the sale of said timber in excess of the amount due them by way of reimbursement for amounts paid out by them in redeeming said property from the foreclosure sale.
The complainants submit themselves to the jurisdiction of the court, and offer to do "full and complete equity in the matter as may be adjudged by the Court," and they aver their readiness, ability and willingness "to make contribution to the cost of the redemption of said property and the preservation of the title thereto."
There was a demurrer to the bill as a whole and to the different aspects of the same, filed by the respondents Hattie V. Salter and Cora H. Plemmons.
The demurrer to the bill as a whole contains many grounds. Among these grounds are: That the bill is without equity; that the bill in its prayer for process fails to name any respondent; that there is a nonjoinder of necessary parties respondent; that it is not averred in the bill that possession of the lands was delivered "to the purchasers at the foreclosure sale, or their vendors;" that the bill fails to aver that no demand for possession was made upon the complainants after the alleged foreclosure.
To the different aspects of the bill, the respondents Hattie V Salter and Cora H. Plemmons also demurred assigning a number of grounds, among them, that the bill shows upon its face that the complainants...
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...the rule of repose by the infancy of the minor complainant." This rule, however, has not been extended to a bill of review. Salter v. Odom, 240 Ala. 462, 199 So. 687; v. O'Neill, 225 Ala. 92, 142 So. 397, 85 A.L.R. 1526; Griffin Lumber Co. v. Neill, 240 Ala. 573, 200 So. 415, 134 A.L.R. 286......
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Dominex, Inc. v. Key
...that Brunson sought to execute a corrective transfer of his post-redemption rights. Clearly, under the rule stated in Salter v. Odom, 240 Ala. 462, 199 So. 687 (1940), and followed in Reed v. Dunn, supra, upon Key's redemption, title vested in Key subject to the inchoate right of James Brun......
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Draper v. Sewell
...of the mortgage and the purchase of the property at the foreclosure sale by the appellee. We said in the case of Salter v. Odom, 240 Ala. 462, 199 So. 687, 688: 'In this jurisdiction it is established, by a long line of decisions, that a redemption of property by one cotenant from mortgage,......
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Thompson v. Odom, 1 Div. 70
...which inures to the benefit of their brothers and sisters, all of whom were parties to the suit. Shortly after our decision in Salter v. Odom, supra, and on May 11, 1942, Hattie V. Salter and Cora H. Plemmons executed a quitclaim deed as parties of the first part to W. M. Averett as party o......