Smith v. Smith

• Decision Date: 30 October 1924
• Docket Number: 7 Div. 450.
• Citation: 101 So. 903,212 Ala. 132
• Parties: SMITH v. SMITH ET AL.
• Court: Alabama Supreme Court

101 So. 903

212 Ala. 132

SMITH v. SMITH ET AL.

7 Div. 450.

Supreme Court of Alabama

October 30, 1924

Rehearing Denied Nov. 20, 1924.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill in equity by George Smith against A. J. Smith and others for sale of lands for division of proceeds among joint owners or tenants in common. From a decree denying relief, complainant appeals. Reversed and remanded.

J. M Miller, of Gadsden, for appellant.

Culli Hunt & Culli, of Gadsden, for appellees.

GARDNER J.

The bill in this cause was filed by the complainant against the respondents, seeking a sale of certain real estate therein described for division among the parties to the suit as tenants in common. The bill was filed May 8, 1920, and on June 1, 1920, respondents Carl and Bessie Cline and Floyd Cline Evans filed an answer thereto. On June 4, 1920, the bill was amended in material respects, and on June 1, 1920 answer was filed by another respondent, Harley Force, and on June 7th thereafter respondent A. J. Smith filed his answer wherein he claimed title to the entire property. The bill was again amended in material respects on January 14, 1921. The guardian ad litem was appointed for respondent Roy Smith, a minor, and answer filed by such guardian on January 18, 1921. On September 3, 1921, the bill was again amended so as to meet the answer of respondent A. J. Smith by setting up certain facts not necessary now to note and alleging that the deed of said respondent was obtained by the exercise of undue influence, and it was sought to be canceled. The bill, therefore, as last amended, was one seeking, for its prime object, a sale of land therein described, for division among tenants in common, and a cancellation of the deed to A. J. Smith as incidental, and for the purpose of making the partition more effective. Long v. Long, 195 Ala. 560, 70 So. 733.

In January, 1923, decrees pro confesso were entered by the register against respondents Simmons, Atkins, and Lita Belle Smith. Evidence was taken by deposition and the cause was submitted for final decree on pleadings and proof as noted, and a decree rendered dismissing the bill. From this decree the complainant has prosecuted the appeal.

In filing the amendments to the bill, the complainant failed to observe the provisions of the act of September 22, 1915 regarding notice to the respondents as therein required. Gen. Acts 1915, p. 706; Farmers' State Bank v. Inman, 208 Ala....