Smith v. Hill

Decision Date07 June 1910
Citation168 Ala. 317,52 So. 949
PartiesSMITH ET AL. v. HILL.
CourtAlabama Supreme Court

Appeal from Talladega City Court; G. K. Miller, Judge.

Bill by George A. Hill against Marcus L. Smith and others. From a decree granting the relief prayed, and denying relief on cross-bill, respondents appeal. Reversed, rendered, and remanded.

The original bill was filed by George A. Hill against M. L. Smith and others, seeking partition of 598 acres of land by sale alleging that he owned seven-twelfths, that Marcus L. Smith owned a life estate in the remainder, and that, subject to such life estate, the other nine respondents each owned an undivided one-ninth interest in the remainder, subject to being diminished by any other children born to Marcus L Smith. The respondents M. L. Smith and Lottie Smith demurred to the bill on various grounds. W. M. Lackey was appointed guardian ad litem for the minors, but failed to file any answer. M. L. Smith, Lottie Smith, and Kate McDonald having failed to file an answer, a decree pro confesso was entered as against them. On the 14th of September, 1909, the guardian ad litem filed an answer and cross-bill for all of the minor respondents, denying that the property could not be equitably partitioned, and asking that it be partitioned in kind, and that he, as guardian, had the right to pay in behalf of the minor any sum necessary to make the parts equal. Afterwards the respondents M. L. and Lottie Smith and Kate McDonald adopted the answer and cross-bill of the minor respondent and filed same as their answer and cross-bill, but without having the decree pro confesso set aside. The bill also prayed for a construction of a deed, and that the court ascertain the interest of the respondents therein. By his decree the chancellor ordered the land sold as prayed, and denied the prayer of the cross-bill that the lands be divided by metes and bounds.

Whitson & Harrison, for appellants.

Knox Acker, Dixon & Blackmon, for appellee.

ANDERSON J.

Partition in kind is matter of right; that it will be difficult, or that injury may result, is no defense to an act of partition. Gore v. Dickinson, 98 Ala. 363, 11 So. 743, 39 Am. St. Rep. 67; Cates v. Johnson, 109 Ala. 126, 19 So. 416. In order, however, for the chancery court to sell land for division among joint owners, it must be averred and proven that it cannot be equitably divided. Berry v. Tenn. Co., 134 Ala. 618, 33 So. 8; McMath v. De Bartdelaben, 75 Ala. 68. It is also the purpose and intent of the law that a partition should be final and not partial, and the land should be divided among all of the owners, and not by grouping the interests and making a partial division between a certain class.

We may concede that the bill sufficiently avers that the land in question cannot be equitably divided between all of the owners, and that the proof shows that it cannot be done in view of the fact that the land would have to be divided so as to give the complainant seven-twelfths and each of the respondent children, and the wife, one-ninth of the five-twelfths, each, subject to the life estate of their father, taking also into consideration the area of the land and its character as disclosed by the evidence, we think the complainant made out a prima facie case entitling him to a sale for distribution but for the cross-bill of the respondents. The respondents by their cross-bill seek to have their joint five-twelfths interest set apart to them jointly and which will give the complainant his seven-twelfths interest, which he can get and with which he must...

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9 cases
  • Adams v. Mathieson Alabama Chemical Corp.
    • United States
    • Alabama Supreme Court
    • November 4, 1954
    ...it cannot be equitably divided. Berry v. Tenn. Co., 134 Ala. 618, 33 So. 8; McMath v. DeBardelaben, 75 Ala. 68. * * *' Smith v. Hill, 168 Ala. 317, 322, 52 So. 949, 950; Meador v. Meador, supra; Martin v. Carroll, 235 Ala. 30, 177 So. 144; Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A.L.R.......
  • Betts v. Ward
    • United States
    • Alabama Supreme Court
    • February 15, 1916
    ... ... A. Grayson and Turner Petty, both of Huntsville, for ... appellants ... Lanier ... & Pride, Cooper & Cooper, and R.E. Smith, all of Huntsville, ... for appellee ... THOMAS, ... On ... March 5, 1878, John L. Blair and wife conveyed to Sim Jordan ... their mutual interests, and two or more may take shares as ... tenants in common. Folger v. Mitchell, 3 Pick ... (Mass.) 396; Smith v. Hill, 168 Ala. 317, 52 ... An ... attempted partition, originally ineffectual or voidable, ... becomes valid and binding by the ratification ... ...
  • Martin v. Jones, 3 Div. 814
    • United States
    • Alabama Supreme Court
    • October 16, 1958
  • Hall v. Hall
    • United States
    • Alabama Supreme Court
    • May 20, 1948
    ...in equity by paying owelty. But that statute does not obtain unless the entire tract can be thus partitioned. The case of Smith v. Hill, 168 Ala. 317, 52 So. 949, sustains the view that sometimes in a partition suit separate owners of the fractional interests may consolidate their claims, a......
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