Thomas v. Skeggs, 6 Div. 652.
| Decision Date | 29 October 1931 |
| Docket Number | 6 Div. 652. |
| Citation | 137 So. 443,223 Ala. 598 |
| Parties | THOMAS ET AL. v. SKEGGS. |
| Court | Alabama Supreme Court |
Rehearing Denied Nov. 19, 1931.
Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.
Bill to sell lands for division among tenants in common by William E Skeggs against W. W. Thomas and others, and cross-bill by respondents. From a decree for complainant on the original bill, and dismissing the cross-bill, respondents appeal.
Modified and affirmed.
E. W Godbey, of Decatur, for appellants.
Ernest B. Fite and K. V. Fite, both of Hamilton, for appellee.
The bill is for the sale of lands for division among tenants in common.
The original bill was sustained on appeal from a decree overruling demurrer thereto. Thomas v. Skeggs, 213 Ala. 159, 104 So. 395.
The bill alleged that complainant, W. E. Skeggs, owned an undivided one-half interest in the lands, and defendants Ella A. Thomas, Addie Toadvin Ford, and Page Toadvin, owned each an undivided one-sixth interest therein.
It later developed that the muniment of title is a sheriff's deed made in 1897 upon the sale of the lands under execution as the property of Alabama Kaolin & Mineral Company. The purchasers of the land at execution sale, as recited in the sheriff's deed, were "W. E. Skeggs and Wesley W. Thomas as the administrator of S. F. Toadvin, deceased."
The purchase money is recited to have been paid by "Wm. E. Skeggs and Wesley W. Thomas, Administrator as aforesaid," and the grantees named as "W. E. Skeggs and Wesley W. Thomas, Administrator of the estate of S. F. Toadvin, dec'd."
The defendants to the original bill are all the heirs at law of S. F. Toadvin, deceased.
In this state of the title an amended bill was filed making Wesley W. Thomas a party defendant, reasserting the ownership in said heirs at law, and praying that title be quieted in complainant and said heirs as against said Thomas.
This amended bill was sustained as against demurrer on appeal of W. W. Thomas. Thomas v. Skeggs, 218 Ala. 562, 119 So. 610.
The present appeal is from a final decree granting the complainant relief as prayed.
The main issue in the evidence is whether the property may be equitably partitioned in kind.
It is a body of unimproved wild lands containing 1,040 acres. It appears the standing timber is the major element of value; that such timber is in scattered areas, differing much in quantities and qualities; that much of the land has no valuable timber. It further appears the tract is broken, rough, and hilly; has some land available for farming purposes, but in scattered spots only, and these of undefined areas and values. It further appears an undefined area is underlain with an undeveloped seam of coal; that kaolin also appears on rather large but undefined areas.
The evidence warrants a finding that the mineral rights as a whole have some market value, and to some degree favorable affect the market value of the whole.
Without further detail we conclude, on a careful consideration of the evidence taken in part orally before the trial court, the decree adjudging that the property cannot be equitably partitioned in kind should be sustained.
The answer to the amended bill alleged that not all the property of the cotenancy was included. That certain additional property in section 21 was described in the sheriff's deed of 1897 is true. But no evidence controverts that of complainant tending to show the present holdings are limited to those described in the bill and ordered sold by the decree.
A question is raised as to the inclusion of 80 acres, E. 1/2 of N.E. 1/4 of section 18, not described in the sheriff's deed. Whether the evidence of adverse possession of this as part of the same tract, and of non-assertion of any claim by any one else, is sufficient to vest a title in these cotenants, we need not and do not decide. Appellants have nothing to complain of in the inclusion of these 80 acres.
Nor will the trial court be put in error in not requiring and awaiting some form of proceeding to quiet title to this comparatively small fraction.
The evidence taken after W. W. Thomas was made a party respondent and the cause was at issue on the amended bill supports the averment that the beneficial and equitable ownership of the one-half interest was in the heirs of S. F. Toadvin as averred. No proof was taken in support of the denials of the answer in this regard.
Much is said in briefs touching the decree denying relief on the cross-bill. W. W. Thomas, complainant in the cross-bill, did not join in...
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...and prepare same for trial, the court may proceed on the original bill and answer though there is also a cross-bill. Thomas v. Skeggs, 223 Ala. 598(4), 137 So. 443. When an answer is also a cross-bill its nature as an answer is not affected. Burns v. Lenoir, 220 Ala. 422(5), 125 So. 661.' W......
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Riley v. Wilkinson, 6 Div. 232.
...where cross-complainant has not taken necessary steps to get the cross-bill at issue and prepare same for trial. Thomas v. Skeggs, 223 Ala. 598, 137 So. 443; Carson v. Sleigh, 201 Ala. 373(6), 78 So. To get the record in shape to review the trial court in respect to the cross-bill, the cros......
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...and prepare same for trial, the court may proceed on the original bill and answer though there is also a cross-bill. Thomas v. Skeggs, 223 Ala. 598(4), 137 So. 443. When an answer is also a cross-bill its nature as an answer is not affected. Burns v. Lenoir, 220 Ala. 422(5), 125 So. The fir......
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Berry v. Kimbrough, 5 Div. 619
...that these three separate tracts of land could not be equitably divided in kind between the several tenants in common. Thomas v. Skeggs, 223 Ala. 598, 137 So. 443; Ezzell v. Wilson, 200 Ala. 612, 76 So. The decree of the trial court is affirmed. Affirmed. STAKELY, MERRILL and SPANN, JJ., co......