Smith v. Smith

• Decision Date: 13 October 1927
• Docket Number: 7 Div. 750
• Citation: Smith v. Smith, 216 Ala. 570, 114 So. 192 (Ala. 1927)
• Parties: SMITH v. SMITH.
• Court: Alabama Supreme Court

114 So. 192

216 Ala. 570

SMITH v. SMITH.

7 Div. 750

Supreme Court of Alabama

October 13, 1927

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

Bill in equity by George Smith against A.J. Smith and others for cancellation of a deed and for partition of lands or sale for division of proceeds among joint owners. From a decree for complainant, the named respondent appeals. Reversed and remanded.

Culli Hunt & Culli, of Gadsden, for appellant.

J.M Miller, of Gadsden, for appellee.

BROWN J.

This case on the first appeal is reported in Smith v. Smith et al., 212 Ala. 132, 101 So. 903. After remandment of the case, without apparent objection, by way of amendment, a new bill was substituted for the original bill as amended. By the substituted bill the complainant seeks the cancellation of a deed made by Amanda Smith to the respondent, A.J. Smith, on the 16th day of October, 1918, after the lands in question were set apart to the widow of H.L. Smith, deceased, as a homestead. The bill also prays for partition in kind, between the complainant and defendants, according to their respective interests, and, in the alternative, for a sale of the property for division on the ground that it cannot be equitably divided.

While the bill avers as a conclusion that "complainant and defendants are joint owners and tenants in common," it does not show the relation of the parties to H.L. Smith deceased, nor that the complainant is claiming under him except by mere intendment.

"Pleadings are required to be certain and specific in their averments of the material facts of which the right to relief depends, so as that it shall not be left to inference, merely, what those facts are." Richards v. Richards, 98 Ala. 599, 12 So. 817.

A proceeding for partition in kind and a sale for division, between joint owners, are inconsistent remedies. Joint owners or tenants in common are entitled as a matter of right to partition in kind, if the lands can be equitably divided, while the right to a sale for division depends upon the fact, which must be averred and proved, that the lands cannot be equitably divided. Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604; Chandler v. Home Loan Company et al., 211 Ala. 80, 99 So. 723.

The bill avers:

"That after the death of complainant's father, H.L. Smith, the lands under some sort of court proceedings were set apart to his widow, Amanda Smith."

Construing this averment most strongly against the pleader, as must be done on demurrer, it will be assumed that such court proceedings were regular and in due form, intercepting the passing of the title to the heirs at law of H.L. Smith, and vesting it in the widow. Code of 1923, § 7920; Schloss v. Brightman, 195 Ala. 540, 70 So. 670; Randolph v. Vails, 180 Ala. 82, 60 So. 159.

Proceeding on this assumption, the complainant, who inferentially is claiming as an heir at law of H.L. Smith, is without right to file the bill in any of its several aspects. Unless he claims under or through Amanda Smith, he is in no position to complain that A.J. Smitl procured the conveyance from her by undue influence, nor can he claim as an heir at law of Amanda Smith without averring, as...