Sandlin v. Anders

• Decision Date: 18 October 1923
• Docket Number: 8 Div. 192.
• Parties: SANDLIN ET AL. v. ANDERS ET AL.
• Court: Alabama Supreme Court

98 So. 299

210 Ala. 396

SANDLIN ET AL. v. ANDERS ET AL.

8 Div. 192.

Supreme Court of Alabama

October 18, 1923

Rehearing Denied Dec. 6, 1923.

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Bill by Randolph Sandlin and others against J. A. Anders and others. From a decree sustaining demurrer to the bill, complainants appeal. Reversed and remanded.

Sample & Kilpatrick, of Hartsells, and S. A. Lynne, of Decatur, for appellants.

G. O Chenault, of Albany, for appellees.

BOULDIN J.

This is a suit in equity for the sale of lands for division among tenants in common. To this end the bill further seeks to cancel clouds on the title, and to adjust and apportion incumbrances.

The title to the tract of land is alleged to be in the complainants, owners of an undivided five-sevenths interest and respondent John H. Sherrill, the owner of an undivided two-sevenths interest, all holding as heirs at law of Sarah P. Sherrill, deceased.

The bill further shows that Sarah P. Sherrill left a surviving husband, James A. Sherrill, who succeeded to the possession and a life estate in the lands; that pending his possession the surviving husband executed a mortgage on the lands; that upon default the mortgage was foreclosed, and the lands purchased by respondent James A. Anders, who received a foreclosure deed; that this purchase by Anders was by friendly arrangement with James A. Sherrill, the mortgagor by which Anders was to have the possession and use of the lands for the year 1906, to reimburse him for the sum paid on his purchase at the foreclosure sale, whereupon, his rights as purchaser should cease and he should continue in possession as the tenant of James A. Sherrill; that accordingly Anders did pay the rents to James A. Sherrill for the years 1907, 1908, and 1909, and executed his rent note for the year 1910. James A. Sherrill died about October 12, 1910. The bill as amended further shows that respondent John H. Sherrill, one of the tenants in common, has been in possession of a small portion of the lands since the death of James A. Sherrill; that James A. Anders has recognized his right as an heir of Sarah P. Sherrill and as the purchaser of another share.

But it is shown that James A. Anders has, since the death of James A. Sherrill, the life tenant, held adverse possession of the remaining portion of the lands; that his right and title terminated with the death of James A. Sherrill, and he now has no interest as tenant in common in the property. It is further shown that James A. Anders executed mortgages on the property which are still unsatisfied. These mortgagees are made parties respondent. John H. Sherrill also executed mortgages on his undivided interest. His mortgagee is made a party respondent.

Complainants seek to cancel the foreclosure deed held by Anders, and the mortgages executed by him as clouds on the title.

The demurrers raise the point that a court of equity is without power to sell, for division among tenants in common, lands which are in the adverse possession of one who has no title, no community interest as a tenant in common, and that complainants must first recover possession from such adverse claimant at law. This is the vital question here presented. It was early settled in this state that a court of equity had no original jurisdiction to sell lands for division among tenants in common. Deloney v. Walker, 9 Port. 497; Lyon v. Powell, 78 Ala. 351.

Our first statute conferring such power appeared as section 3262 of the Code of 1886, as follows:

"3262. Jurisdiction of chancery court to divide or sell for division.-The chancery court shall have concurrent jurisdiction with the probate court to divide or partition, or to sell for division or partition, any property, real, personal, or mixed, held by joint owners or tenants in common."

This statute was construed in McQueen v. Turner, 91 Ala. 273, 8 So. 863. It was there held that the adverse possession of one tenant in common, which had not ripened into title, did not oust the jurisdiction of the chancery court to proceed according to its own practice to settle the question of title and decree a sale when the property cannot be equitably divided.

In Sellars v. Friedman, 100 Ala. 499, 14 So. 277, the case of McQueen v. Turner was departed from, and the rule declared that the chancery court was given "concurrent jurisdiction" with the probate court, and was without power to sell lands for division when held adversely under claim of title. This became the established rule under the Code of 1886. Davis v. Bingham, 111 Ala. 292, 18 So. 660.

The statute was amended November 27, 1896, and appeared as section 3187 of the Code of 1896, reading:

"3187 (3262). Jurisdiction of chancery court to divide or sell for division.-The chancery court shall have jurisdiction to divide, or partition, or to sell for division or partition, any property, real, personal, or mixed, held by joint owners or tenants in common, whether the defendant denies the title of the complainant or sets up adverse possession or not."

The amended statute was considered in Brown v. Hunter, 121 Ala. 210, 25 So. 924. After referring to decisions in Sellars v. Friedman, supra, and Davis v. Bingham, supra, the court said:

"The manifest purpose of this act was to obviate the difficulties pointed out in the two decisions last above referred to, and to avoid compelling the complainant to first establish her legal title, when disputed, in a court of law, before she could prosecute her suit in a court of equity for partition, or a sale for partition; and to permit such a bill to be maintained by a complainant out of possession as against her joint tenants or tenants in common, provided she can show that she has such an interest or title in the property, though disputed, as entitles her to share in the distribution of the proceeds."

Section 3187 of the Code of 1896 was brought forward as section 5231 of the Code of 1907, without change.

In Fies v. Rosser, 162 Ala. 504, 50 So. 287, 136 Am. St. Rep. 57, the court followed Brown v. Hunter, supra, but further held that the complainants must show a present right of possession, that reversioners cannot have sale for division pending a life estate in the entire property.

Section 5231 of the Code of 1907 was further amended (Acts 1909, p. 124) so as to read:

"The chancery court shall have original 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 the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to its own practices."

The changes wrought by this act are: First. The chancery court is made one of original jurisdiction. Second. The court shall proceed according to its own practices.

Construing this act of 1909, supra, in Trucks v. Sessions, 189 Ala. 149, 66 So. 79, it was held that the effect of this last amendment-

"was to make superior, serviceable, and controlling the practices of courts of equity in exercising the power defined in the act, and to exempt a court of equity from obligation to observe statutory prescriptions in respect of the effectual exercise of the jurisdiction declared."

The Code commissioner added sections 5232 and 5233 of the Code of 1907. In explanation he appended a note at the end of the chapter saying they "were intended by the commissioner to complete the systems of partition and sale for division in this state." Again, section 5232 was amended by Act October 6, 1920. Acts 1920, p. 164. This amended section reads:

"5232. Controverted Title and All Equities Disposed of. If the title of the complainants seeking partition or sale of lands for a division shall be controverted, or should the title or claim of any of the parties to the cause be adverse to that of one or more of the other parties, it shall not be necessary for the court to dismiss the bill or delay the suit for an action at law to try the title, but the question of title shall be tried and determined in the suit by the chancery court, which shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands, whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several cotenants, or claimants as well as the equities and claims of the incumbrances."

The changes made by the act of 1920 are italicized.

Section 5232 of the Code of 1907 was construed by this court in Brown v. Feagin, 174 Ala. 438, 57 So. 20. After reviewing the authorities, we held that sections 5231 and 5232 did not confer the right on-

"joint owner to seek in one and the same proceeding a partition as against his recognized cotenants, and also a quieting of his title against outside parties claiming adversely to him and his cotenants without any title or interest in common with them."

The effect was to limit the trial to adverse claims, and removal of clouds upon title, to cases where there remains a community of interest of some sort between all the parties, entitling all of them to share in the partition or in the distribution of the proceeds of sale.

In Sandlin v. Sherrill, 201 Ala. 692, 79 So. 264, a suit similar to this, involving the same parties and property, was before this court. We there said:

"The bill in this cause has for its prime object the sale of lands for division among tenants in common."

The suit failed for want of proof of the jurisdictional fact that the property sold could not be equitably divided. This court modified the decree of the court...