Shepard v. Mt. Vernon Lumber Co.

• Decision Date: 13 May 1915
• Docket Number: 857
• Citation: Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322, 68 So. 880 (Ala. 1915)
• Parties: SHEPARD v. MT. VERNON LUMBER CO.
• Court: Alabama Supreme Court

68 So. 880

192 Ala. 322

SHEPARD v. MT. VERNON LUMBER CO.

No. 857

Supreme Court of Alabama

May 13, 1915

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Bill by the Mt. Vernon Lumber Company against Kate T. Shepard for a sale of land and timber thereon for partition and division. From a decree overruling demurrers to the bill, respondent appeals. Reversed and rendered.

W.G Caffey and Gregory L. & H.T. Smith, all of Mobile, for appellant.

Ervin &amp McAleer, of Mobile, for appellee.

McCLELLAN J.

The appellee has persistently sought the right it conceives to be its due under a contract whereby it purchased and took the title to certain standing timber on certain lands. A full statement of the conveyance and the cause may be found in the report of this appellee's appeal in 180 Ala. 148, 60 So. 825. The appellee took conveyance and title to described standing timber, and engaged to remove it from the land within five years from the 19th day of April, 1901. On the appeal of the cause just mentioned, wherein the lumber company sought to have its title to the standing timber made available and the appropriation of its timber facilitated, notwithstanding the five-year period in which the company had engaged to receive the timber had expired. It was ruled (180 Ala. 148, 60 So. 825) that the bill was without equity, for that it sought to invoke the court's jurisdiction to the end that a trespass upon the land of the grantors in the conveyance to the company might be sanctioned, authorized, and enforced. The lumber company then brought an action of ejectment to recover the standing timber described in its conveyance. It was held on appeal (67 So. 286, 687) that the company could not prevail; and so for the reason on which the previous appeal (180 Ala. 148, 60 So. 825) was rested, viz., that, though holding the title to the timber the possession of which was sought to be recovered in the ejectment suit, to issue judicial process to consummate that possession would be to aid in and to effectuate a trespass by the company. The judgment against the company in the ejectment suit was hence affirmed.

Now, the lumber company has filed a bill to have the land sold (including, of course, the timber), on the ground that the property cannot be equitably divided without a sale, and invoking the court to ascertain, appraise, and apportion the respective values of the timber, to which the company has titles, and the land.

Article 1 of chapter 121 of the Code (section 5203 et seq.) affords the positive law governing partition and sales for division of lands held by "joint owners or tenants in common." Code, § 5231, provides:

"The chancery court shall have 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 the complainant or sets up adverse possession or not."

The statutory process whereby lands may be sold by the courts of chancery for division of the proceeds among the joint owners or tenants in common is a substitute for partition in kind; the proceeds of the sale taking the place of the land and the respective rights of the joint owners or tenants in common to the money being apportioned in proportion to the undivided interest of each in the land. Kelly v. Deegan, 111 Ala. 152, 156, 157, 20 So. 378, 379, 380. In this case it was said:

"While a court of equity had jurisdiction, concurrent with courts of law, to decree the partition of lands held by coparceners, joint tenants, and tenants in common, it was without jurisdiction to decree a sale of the lands, if the tenants, or either of them, were adults, and not consenting. Deleney v. Walker, 9 Port. 497. The statute (Code 1886, § 3262) now confers the jurisdiction, concurrent with that of the court of probate, 'to divide or partition, or to sell for partition,' whether the tenants are adults or infants. The essential, controlling element of the jurisdiction is that the lands 'cannot be equitably divided or partitioned' among the tenants. Code 1886, § 3253. When this fact exists, a sale at the instance of either tenant is matter of right, as actual partition at common law was matter of right, without inquiring whether it is of benefit or injury to the other tenants. Freeman on Cotenancy and Partition, § 539. The decree of sale is obtained only by an adversary judicial proceeding, and the sale is compulsory. It works a conversion of the lands into money, but it is not destructive of, and works no change in, the relations and rights of the parties; the money stands in the place of the lands, and is divided as the lands would have been divided if of them there had been actual partition."

According to the statutes, a sale of land for division cannot be had unless the land cannot be equitably partitioned among the joint owners or tenants in common thereof. And in further exposition of the subject it was said in Kelly v. Deegan, supra:

"The indispensable element of every compulsory partition is a cotenancy. Whatever other relation may exist, if this relation does not exist, there is no right to partition."

It will hardly amount to addition to this statement to say that a cotenancy is an indispensable element of every compulsory sale for division under our statutes; and that, if there is no cotenancy, there is no right to a sale for division. Expressive of the same fundamental principle, it was pronounced in Brown v. Feagin, 174 Ala. 438, 443, 444, 57 So. 20, 22:

"The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of and against tenants in common, and the equity of the bill filed for either purpose is founded on the community of title or interest in the several parties complainant and defendant."

In treatment of a bill wherein partition was sought, this court pertinently said, in Berry v. T.C.I. & R.R. Co., 134 Ala. 622, 33 So. 9:

"Indeed, it is required of complainant that it should show a clear title to an undivided interest in the lands sought to be partitioned." (Italics supplied.)

The proposition, under like circumstances, was thus emphatically stated in Russell v. Beasley, 72 Ala. 190:

"It is required of the complainants, however, that they should show a clear title to an undivided interest in the lands sought to be partitioned."

The cause in that instance was disposed of upon the ground that the evidence did not "show any estate in common between the complainants and the defendant in the suit, either by way of a joint tenancy, or a tenancy in common." And it was also therein pronounced that:

"It avails nothing to prove title to a distinct portion of the land proposed to be partitioned for the essence of the estate in common, necessary to be here shown, is that the tenants should 'own undivided parts, and occupy promiscuously, because neither knows his own severalty.' "

Other of our decisions, concluding to the same effect, might be noted.

In Thompson v. Mawhinney, 17 Ala. 362, 368 (52 Am.Dec. 176), it was said:

"Tenants in common are such as hold by several distinct titles, but by unity of possession, because none knoweth his own severalty, therefore they all occupy promiscuously. *** Unity of possession therefore is the very essence of a tenancy in common, and without it this tenancy cannot exist." Pruitt v. Ellington, 59 Ala. 454, 458; Austin v. Bean, 101 Ala. 141, 16 So. 41.

Where the owner of land conveys to another the title to mineral in situ or to standing timber (both realty in the view of the law), the result is to create two closes adjoining but separate (the one the land proper, and the other the mineral or standing timber, conveyed, as the case may be). B'Ham Fuel Co. v. Boshell, 67 So. 403; Hooper v. Bankhead, 171 Ala. 626, 54 So. 549.

The application of the established principles, we have but restated, to the status shown by this bill, leads unescapably to the conclusion and to the result that the bill is without equity; that the demurrer was erroneously overruled. The only title or right, in respect of the land described in the bill, claimed for the lumber company, is the standing timber to which, under our decisions that have long since established a rule of property in this state, the company has the title. The conveyance to it of the standing timber made a close distinct from that of the soil, the title to which was not conveyed to the lumber company. The severance thus wrought was so effectual in its separation of the estates into which this real estate was susceptible of division that the soil owner was and is without title or right to the timber conveyed, and the grantee of the timber, the lumber company, was and is without title or right in or to the estate in the land not conveyed to it. In such circumstances, there could be no cotenancy, joint ownership, or tenancy in common within the purview of our partition statutes. Under very similar circumstances, the Supreme Court of Mississippi, Chief Justice Smith delivering the opinion, ruled to the like effect in Forest Mfg. Co. v. Buckley (Miss.) 66 So. 279. It was therein aptly said:

"It seems clear that the parties hereto do not hold the property in question either as joint tenants, tenants in common, or coparceners, and therefore they do not come within the terms of the statute. Appellee has parted with all of his title to the trees, and has no further interest therein. Appellant owns no part of the land as such, but simply owns the trees standing thereon, with the incidental right of having them remain on and receive sustenance from the soil until they shall be cut and removed. The situation of the parties hereto is substantially the same as that of persons who own different rooms in the same

...