Vaughn v. Vaughn

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Vaughn v. Vaughn, 180 Ala. 212, 60 So. 872 (Ala. 1912)
• Decision Date: 19 December 1912
• Parties: VAUGHN v. VAUGHN.

60 So. 872

180 Ala. 212

VAUGHN v. VAUGHN.

Supreme Court of Alabama

December 19, 1912

Appeal from Chancery Court, Lauderdale County; W. H. Simpson Chancellor.

Bill by Amanda Vaughn against John W. Vaughn for partition homestead, and dower. From a judgment for respondent on demurrer, complainant appeals. Affirmed in part, and in part reversed and remanded.

The bill prays, among other things, that it be taken as a cross-bill, and shows that Susie Miles, some time in 1905 filed her bill against oratrix and John W. Vaughn, alleging her interest in the lands as the heir at law of Benjamin R Vaughn, and at the same time admitting and recognizing oratrix's right to a homestead and her dower interest therein, and praying an order adjudging a decree that one-half the land be set apart to her, and the other part be set over to John Vaughn, and that, out of the portion set apart to complainant, a homestead be carved, to be used and enjoyed by Amanda Vaughn, and that, relying on the prayer and on the admissions made by Susie Miles that she would be protected, she took no steps in the litigation, except to file a formal answer admitting the allegations of the bill; that later, and not until January, 1907, did John Vaughn file any answer to said bill, but then he claimed to have purchased the lands in question from said Susie Miles, and alleging that the interest of the present complainant had been sold by her to James Vaughn under some alleged or pretended conveyance, the nature of which is not set forth. It is further alleged that Susie Miles compromised the litigation with John Vaughn, and made him a conveyance of all of said land, except 45 acres, on some consideration not known to orator, and that, at a recent term of the chancery court, said Susie Miles applied for and obtained a dismissal of her said bill filed against John Vaughn and others. Oratrix then alleges her interest in the land to be that of the widow of Benjamin Vaughn, deceased, who owned a half interest in the lands at the time of his death; John Vaughn owning the other half, and Susie Miles being the only heir at law of said Benjamin Vaughn. It is then alleged that, under the facts set out, she is entitled in equity to have John Vaughn substituted in the place of Susie Miles, and, from the land so purchased by him, to have a dower and homestead carved out.

Paul Hodges, of Florence, for appellant.

George P. Jones, of Florence, for appellee.

ANDERSON J.

While the pleader designates the present bill as a "cross-bill," we do not so consider it, as it shows that the original bill had been dismissed.

Nor do we understand that it is a bill of revivor, as there was no abatement, but a dismissal of the original suit. Section 3120 of the Code of 1907.

Neither can it be treated as a good bill of review, as it contains no charge of fraud, error of law apparent upon the record, or newly discovered evidence. McCall v. McCurdy, 69 Ala. 65; 3 Mayfield's Digest, 307.

Therefore, the only theory upon which the bill can be said to contain equity is as an original bill for partition and the allotment of dower, and for this purpose, we think, that it contains equity; but the heir, Susie Miles, is a necessary party, and the bill cannot be maintained against John W. Vaughn alone.

It is true that Vaughn bought most of the land from the heir; but it also appears that he conveyed some of it to said heir Susie Miles; and, for aught that appears, it may be as valuable as the portion received by Vaughn, and, if it is, this should be treated as a voluntary partition between the joint owners, subject, of course, to complainant's marital rights in and to the interest of her deceased husband, but which a court of equity would enforce against the share of the heir rather than upon the interest conveyed to the cotenant of the father. As we understand the law as to the right and enforcement of dower in lands jointly held, there should be a partition and the dower fixed as against the share allotted to the estate or heir of the deceased husband....