Wheat v. Wheat

• Decision Date: 07 November 1914
• Docket Number: 510
• Citation: 190 Ala. 461,67 So. 417
• Court: Alabama Supreme Court
• Parties: WHEAT et al. v. WHEAT et al.

67 So. 417

190 Ala. 461

WHEAT et al. v. WHEAT et al.

No. 510

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Chancery Court, Macon County; L.D. Gardner, Chancellor.

Bill by Moses H. Wheat and others against Jessie L. Wheat and others for partition of certain land. Decree on demurrer for complainants, and respondents appeal. Affirmed.

J.M Chilton, of Montgomery, for appellants.

R.H Powell and O.S. Lewis, both of Tuskegee, for appellees.

SAYRE J.

It is urged for appellants, on the authority of Wilkinson v. Stuart, 74 Ala. 198, that there can be no partition or sale for division of the land in question because some of the parties own interests in remainder. In the case relied upon, the parties--all the parties--had only an estate in reversion. In that case, there being no present right of occupancy, it was held in consonance with the authorities generally that no partition could be awarded. But our cases also hold that, where the party complainant owns a present interest and is entitled to immediate possession and enjoyment, partition is awarded on his prayer, as matter of right, although it may involve the setting apart of interests in reversion or remainder. Fitts v. Craddock, 144 Ala. 437, 39 So. 506, 113 Am.St.Rep. 53; Fies v. Rosser, 162 Ala. 504, 50 So. 287, 136 Am.St.Rep. 57; Letcher v. Allen, 180 Ala. 254, 60 So. 828; Clements v. Faulk, 181 Ala. 219, 61 So. 264; Kidd v. Borum, 181 Ala. 144, 61 So. 100. Complainants in this case being entitled to the present use and enjoyment of an interest in the land, it is no objection to their bill that some of the parties defendant claim in remainder only.

On the authority of Smith v. Witcher, 180 Ala. 102, 60 So. 391, and Trucks v. Sessions, 66 So. 79, we hold that the bill in this case sufficiently shows the impracticability of an actual partition and the necessity for a sale. Such is, in effect, the general averment of the bill; and the ruling of the cases cited is that the sufficiency of such averments is not destroyed by the further averment of particulars from which different conclusions may be drawn. The pleader is allowed to draw his own not unreasonable conclusion.

We are not advised by the bill that it incorrectly describes the interest of the parties, as the demurrer asserts. It is alleged that Estelle C. Cook, during her lifetime the owner of an undivided one-seventh interest in the land, on her death, which occurred 15 years ago, left surviving her a husband, W.T.S. Cook, who thereby became entitled to an estate by curtesy; that complainants have not heard of him for ten years or more, and on these facts it is averred that he claims no interest in the land. However, he is made a party defendant, process by publication has been had against him, and, whether he claims an interest or not, in either case the extent of the interest of each of the other parties complainant and defendant is stated correctly in each alternative, so far as we are able to perceive. It may be that on the final hearing, if relief is awarded under the bill, it will be necessary to preserve the interest of Cook, and to apportion the interests of the parties on the basis of his participation, in the proceeds of the sale, but, if so, that is a matter which will then be correctly determined, and for it the decree will make such provision as may then seem to be necessary and proper.

It is averred in the bill that for the past ten years or more the defendant Jessie L. Wheat has had control and management of the land to be sold for partition or division; that during said time she has taken rent notes in her own name and has collected and received the rents, and has sold and collected for wood, timber, and other things of value belonging to the alleged tenants in common. On this averment defendants' demurrer invokes, as appearing upon the face of the bill, the defenses of laches and the statute of limitation against complainants' ownership and the remedy sought. It is said that the bill shows that defendant Jessie L. Wheat has been and is now holding and claiming adversely to complainants and the other parties defendant. This contention must be denied on familiar principles which hardly call for extended argument. The possession of one cotenant is presumed to be for the benefit of all, and this presumption continues until there is a disseisin by a clear repudiation and denial of the rights of the other cotenants brought home to their actual knowledge, either by express notice or by acts of such an open, notorious, and hostile character as to constitute notice in themselves. Ashford v. Ashford, 136 Ala 631, 34 So. 10, 96 Am.St.Rep. 82; Palmer v. Sims, 176 Ala. 59, 57 So. 704. Mere possession by one cotenant does not operate as an ouster of another. Nor will the exclusive receipt of rents and profits by a cotenant, in connection with a possession not otherwise characterized by...