Thomas v. Skeggs

• Decision Date: 14 May 1925
• Docket Number: 6 Div. 139
• Parties: THOMAS v. SKEGGS.
• Court: Alabama Supreme Court

104 So. 395

213 Ala. 159

THOMAS v. SKEGGS.

6 Div. 139

Supreme Court of Alabama

May 14, 1925

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Bill in equity by W.E. Skeggs against Ella A. Thomas and others to sell lands for division of the proceeds. From a decree overruling her demurrer to the bill, respondent Thomas appeals. Affirmed.

E.W Godbey, of Decatur, for appellant.

K.V Fite, of Hamilton, for appellee.

GARDNER J.

This appeal is from a decree overruling the demurrers to the bill as amended. The bill is "one seeking a sale of lands for division among the joint owners or tenants in common." The bill described the lands which are alleged to be jointly owned by the parties to this suit, and the interest of each is specifically averred. It is then alleged in paragraph 4 that the lands described in paragraph 2 of the bill are chiefly valuable for the timber and deposits of clay thereon and that, "on account of the distribution and location of said timber and clay, there cannot be an equitable division among the joint owners without a sale thereof." It is objected by demurrer that the averment that the lands cannot be equitably divided without a sale thereof is a mere conclusion of the pleader. It has been held, however, that such averment is sufficient, and is an allegation of fact. Smith v. Witcher, 180 Ala. 102, 60 So. 391. Nor does the omission of the words "or partitioned" render the bill objectionable. Indeed, so far as this feature of the bill is concerned, the above authority is conclusive as to its sufficiency.

In the special prayer for relief we read the word "upon" as a typographical error, self-correcting, and as intended for the word "among." So understood, the special prayer appropriately seeks a sale of the land for division among the joint owners named in the bill. There is also the general prayer for relief. But it is insisted the special prayer is defective, in that just following the above language as to division among the joint owners named, the pleader has added the words "or such of them as may show themselves entitled to an interest therein," and renders the bill demurrable in that it places the burden on respondents to show their interest. These added words to the special prayer, however, could have no such effect. "The real character of a suit in equity is to be determined from a consideration of the matters of substance embodied in the pleadings. *** If...