Sellers v. Friedman

• Decision Date: 01 December 1893
• Citation: 100 Ala. 499,14 So. 277
• Parties: SELLERS ET AL. v. FRIEDMAN ET AL.
• Court: Alabama Supreme Court

14 So. 277

100 Ala. 499

SELLERS ET AL. v. FRIEDMAN ET AL.

Supreme Court of Alabama

December 1, 1893

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs, Judge.

Suit by C. A. C. Sellers and others against B. Friedman and others for sale of land for partition. On the pleadings and proof the bill was dismissed. Complainants appeal. Modified and affirmed.

The bill alleged that the complainants and the defendant J. J. H Sellers were the sole heirs of their mother, Mrs. P. M. C Sellers; that the said Mrs. P. M. C. Sellers died seised of a certain described property; and that the complainants and the said defendant J. J. H. Sellers, being the only heirs, are entitled to have the property partitioned equally,-and therefore prayed that a sale of said lands be had for that purpose. The bill also averred that on the 11th of May, 1883 the said J. J. H. Sellers filed his petition for the partition of said lands in the probate court of Tuscaloosa county; that upon the hearing of said partition an order of sale of said lands was granted, and commissioners appointed to make said sale; and that on July 13, 1883, in pursuance of said order of the court, the commissioners made what the bill alleged was a pretended sale of said land, at which sale B. Friedman & Co. became the purchasers. The bill further alleged that this pretended sale was null and void because some of the complainants, who were then minors, had no notice of said petition, and were not represented at the hearing of said cause, or at the sale, and that B. Friedman & Co., who were the nominal purchasers, had never paid the amount bid at said sale. The bill further averred that the said Mrs. P. M. C. Sellers owned the lands through two separate deeds from her husband, Isaiah Sellers, which two deeds recited a consideration that the said Isaiah Sellers had purchased the lands with the money of said Mrs. P. M. C. Sellers, which was her statutory separate estate. In the answer of the defendants these material allegations of the bill were denied, and it was alleged in said answer that the deeds from Isaiah Sellers to Mrs. P. M. C. Sellers were null and void, as being fraudulent conveyances, and made for the purpose of hindering, delaying, and defrauding the creditors of the said Isaiah Sellers; that B. Friedman & Co. claimed title to the land in controversy (1) through the sheriff's deed at a sale under execution levied upon the said property under a judgment recovered against the said Isaiah Sellers; (2) through a quitclaim deed from Isaiah Sellers to said B. Friedman & Co.; (3) through certain tax deeds. The defendants, in their answer, also alleged the possession and adverse holding of said property.

J. J. Mayfield, for appellants.

Wm. Cochran Fitts and O. Somerville, for appellees.

COLEMAN J.

The bill was filed by appellants for the purpose of obtaining a decree for the sale of land for partition. The answer and evidence raise the question as to whether the chancery court has jurisdiction to sell land for partition, where it is resisted by an adverse claimant in possession. The decisions of this court on this proposition are not in harmony, and it becomes necessary to consider the question again. It cannot be doubted that, from the earliest decision of this court down to the adoption of section 3262 of the Code of 1886, the chancery court did not have jurisdiction to sell lands for division or partition. Delony v. Walker, 9 Port. (Ala.) 497; Harkins v. Pope, 10 Ala. 493; Wilkinson v. Stuart, 74 Ala. 198. The jurisdiction of a court of equity to decree partition of lands cannot be questioned, but this jurisdiction did not extend to cases where the legal title of plaintiff was denied, and its validity depended upon questions of fact, which were controverted. In such cases, partition was not decreed until the titles were settled in a proper forum. Horton v Sledge, 29 Ala. 478. This was the law and practice until the adoption of the statute now embodied in section 3588 of the Code of 1886, by which it is provided, in cases for partition in the chancery court, that when the defendant denies the title of the plaintiff a jury may be summoned to attend the chancery court, to determine the issue of fact. Section 3588, supra, has been frequently considered. Its application is confined to cases for partition of land. It has no reference to cases where the purpose is to obtain a decree for the sale of land for partition. These questions were elaborately considered in the case of McMath v. De Bardelaben, 75 Ala. 68, and satisfactorily determined. Under the law as it then existed, neither the chancery court nor the probate court had authority to decree a sale of lands for partition or distribution,...