Trucks v. Sessions

• Decision Date: 30 June 1914
• Docket Number: 568
• Citation: 66 So. 79,189 Ala. 149
• Parties: TRUCKS v. SESSIONS et al.
• Court: Alabama Supreme Court

66 So. 79

189 Ala. 149

TRUCKS v. SESSIONS et al.

No. 568

Supreme Court of Alabama

June 30, 1914

Rehearing Denied July 25, 1914

Appeal from Chancery Court, Bibb County; Thomas H. Smith Chancellor.

Bill by H.V. Sessions and others against Sarah L. Trucks, for the sale of lands for partition and division. Decree for complainant overruling demurrers to the bill, and respondent appeals. Affirmed.

The land is described by government subdivision as being in section 31, township 34, range 11 east, known as the Charley Woods place. The allegation as to the necessity for a sale is contained in the third paragraph of the bill, and is as follows:

Said lands cannot be equitably divided or partitioned for the reason that only a small portion of the land is improved, and the small tracts in cultivation are badly scattered over the land; that most of the land not in cultivation is very rough rocky, and hilly, the larger part of which cannot be utilized for farming purposes; that there are spots of timber scattered over said land which are also cut in two by Six Mile creek; that parts of said lands are supposed to contain mineral, but that the value of it as mineral land is unknown and it is not known just what portion of said land contains the mineral.

The eighth ground of demurrer is as follows:

For that it affirmatively appears from said bill of complaint that the guardian of Jewel and Opal Sessions should be made party complainant to this bill.

The 18th ground is that complainants fail to submit themselves to the jurisdiction of this court, and it is shown by the bill that this court has no jurisdiction of these complainants.

Horace C. Wilkinson, of Birmingham, and Lavender & Thompson, of Centerville, for appellant.

John T Ellison, of Centerville, for appellees.

McCLELLAN J.

Bill praying sale of land for division among joint owners. It appears from the bill that H.V. Sessions, W.M. Sessions, Mary Taylor, Jane Drury, and Sarah L. Trucks each own an undivided one-sixth interest in the land described in the bill; and that the minors, Opal and Jewel Sessions, each own an undivided one-twelfth interest therein. The minors are among the complainants, and sue by their next friend, H.V. Sessions.

By the act approved August 25, 1909 (Acts Sp.Sess.1909, p. 124), amendatory of section 5231 of the Code of 1907, it is provided that:

"The chancery court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to its own practices." (Italics supplied.)

The necessary effect of the italicized provision of the amendatory act was to make superior, serviceable, and controlling the practices of courts of equity in exercising the power defined in the act, and to exempt a court of equity from obligation to observe statutory prescriptions in respect of the effectual exercise of the jurisdiction declared. As is familiar, infants may sue, in equity as at law, by next friend, who is an officer of the court. 1 Dan. Ch. Prac. (6th Am.Ed.)...