Wood v. Barnett

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 501.
• Citation: 208 Ala. 295,94 So. 338
• Parties: WOOD ET AL. v. BARNETT.
• Court: Alabama Supreme Court

94 So. 338

208 Ala. 295

WOOD ET AL. v. BARNETT.

6 Div. 501.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Samuel T. Barnett against Sterling A. Wood and others for sale of land for division. From a decree overruling demurrer respondents appeal. Affirmed.

Basil A. Wood, of Birmingham, for appellants.

Rudulph & Smith, of Birmingham, for appellee.

THOMAS J.

The bill was for the sale of lands for division among joint owners. The executors of deceased mortgagee holding security on one of the joint interests in the land are made respondents; the mortgagor, having assigned its equity or interest in the land to complainant, is not made a party to the suit.

The bill averred the residence of the parties; that complainant Samuel T. Barnett and respondent, Sterling A. Wood, were joint owners or tenants in common of the real estate described. The respective interests of the parties being set out, it is averred that complainant's interest was subject to a mortgage to Mrs. Christina S. Webb, executed by Henderson Barnett Land Company (before complainant's purchase of his interest in the lands); that the mortgagee is dead and her executors are made parties respondent.

It is averred as a fact that the lands cannot be equitably divided between complainant and respondent without a sale to effectuate that purpose. The prayer was that the lands be sold for division; that the court ascertain and decree a reasonable attorney's fee, etc.; determine the amount that is owing by reason of the indebtedness secured by the mortgage on complainant's interest, in the land, and that amount be paid out of complainant's interest in the proceeds of the sale of his interest in the land.

The demurrer takes the point that the complainant is not entitled to the relief asked for; that the averment that the lands could not be equitably partitioned without a sale thereof is insufficient; that the mortgage by Henderson Barnett Land Company, a corporation, to Christina S. Webb "depreciates the value of the said property, and renders the bill without any equity until the same has been paid and settled"; and that there was a nonjoinder of a necessary party.

The jurisdiction of the court is based upon section 5231 of the Code of 1907, as amended by the act approved August 25, 1909 (Acts Sp. Sess. p. 124):

"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."

See Trucks v. Sessions, 189 Ala. 149, 66 So. 79.

Under the statute so construed, partition may be had, as a matter of right, on the application of one or more of the joint owners or tenants in common. Betts v. Ward, 196 Ala. 248, 72 So. 110; Parker v. Robertson, 205 Ala. 434, 88 So. 418; Lyons v. Jacoway, 205 Ala. 479, 88 So. 597; Roy v. Abraham (Ala. Sup.) 92 So. 792. The necessity of a sale for division will be determined only on coming in of the proof as to whether or not the same cannot be equitably partitioned among the joint owners without a sale. Alexander v. Livingston, 206 Ala. 186, 89 So. 520; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A. L. R. 23; Sandlin v. Sherrill, 201 Ala. 692, 79 So. 264. By the act of 1920 (Sp. Sess. p. 164) Code, § 5232 was amended so as to give the court additional powers in partition or sale for division, as follows:

"*** If any of the lands, whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several cotenants, or claimants as well as the equities and claims of the incumbrances."

This amendment was intended, no doubt, to meet a declaration contained in Espalla v. Touart, 96 Ala. 137, 11 So. 219, that the lien of a recorded mortgage on a moiety of undivided interest in lands is not displaced by a sale of the lands for distribution under the statute (Code 1886, § 3247), Code 1907, § 5215, between joint owners or tenants in common, the "statute not providing that such lien shall be a charge only upon the mortgagor's share or interest in the proceeds." Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604. This was in line with the old cases and texts. Baring v. Nash, 1 Ves. & B. 551; Wotten v. Copeland, 7 Johns. Ch. (N. Y.) 140, 2 N.Y. Ch. 247; Harwood v. Kirby, 1 Paige (N. Y.) 469; Knapp on Part. p. 266; 1 Jones on Mortg. § 475; Freeman on Cot. & Part. (2d Ed.) § 452. See Austin v. Bean, 101 Ala. 133, 16 So. 41, as to adjustment of equities as to an existing mortgage on common property to secure the debt of one of the joint owners.

The effect of the foregoing amendment to our partition statutes was to authorize decree of sale, and, where no portion of the land is allotted to the mortgagor (as a cotenant or joint owner), the lien of the mortgage, on his undivided interest in the land-if the land is sold at judicial sale for partition among joint owners-attaches to the proceeds of the sale in proportion to the interest of the mortgagor in the land sold. Reed v. Fidelity Ins. Co., 113 Pa. 574, 6 A. 163; 27 Cyc. 1142. In the case of Gore v. Dickinson, 98 Ala. 363, 11 So. 743, 39 Am. St. Rep. 67, the bill was for partition, and one moiety was subject to mortgage; such a case being provided by express terms of the statute to attach "on the share assigned to such" lienee or mortgagee. Code, § 5215. Emrich v. Gilbert Mfg. Co., 138 Ala. 324, 35 So. 322; Betts v. Ward, supra.

A sale for division among joint owners is a matter of right, regardless of the inconvenience to or objection of one of such joint owners, where the averment is made and established by the proof that the lands sought to be sold cannot be equitably divided without a sale thereof. The general averment of necessity of a sale for division is sufficient as an allegation of fact, and is not a conclusion of the pleader. Wheat v. Wheat, 190 Ala. 461, 67 So. 417; Carson v. Sleigh, 201 Ala. 373, 78 So. 229; Musgrove v. Aldridge, 205 Ala. 189, 87 So. 803; Jernigan v. Gibbs, 206 Ala. 93, 89 So. 196; Miles v. Miles (Ala. Sup.) 91 So. 886; Trucks v. Sessions, supra; Smith v. Witcher, 180 Ala. 102, 60 So. 391; McEvoy v. Leonard, 89 Ala. 455, 8 So. 40. In the case of Donnor v. Quartermas, 90 Ala. 164, 8 So. 715, 24 Am. St. Rep. 778, the court, speaking through Mr. Justice Somerville, said:

"So it may be considered as settled by the weight of authority, that every cotenant is entitled to demand a partition of the common property, although such partition may be inconvenient, or injurious-it has sometimes been said, or even ruinous-to one or more of the parties in interest. Freeman on Coten. & Part. 433, 438. *** Or, as said by Mr. Adams in his work on Equity, p. 230, it 'may be demanded as matter of right, notwithstanding the difficulties by which a division may be embarrassed, or the mischief it may entail on the property."' O'Neal v. Cooper, 191 Ala. 182, 184, 67 So. 689; Gore v. Dickinson, supra; Mylin v. King, 139 Ala. 319, 35 So. 998; Stein v. McGrath, 128 Ala. 175, 30 So. 792.

The fact that the complainant's undivided interest is subject to a mortgage cannot affect the equity of the bill, as for a sale for division, nor the rights of the respondent as executor of the mortgagee, as it is prayed that the amount of the mortgage be ascertained and paid out of the complainant's part of proceeds of the sale. It is expressly provided by Code, § 5232, as amended (Sp. Acts 1920, p. 164), that the court may adjust the equities and claims between the several cotenants or claimants, as well as the equities and claims of liens or incumbrances.

It being averred that the lands cannot be equitably divided without a sale, the services of counsel for complainant in the prosecution of the suit to this end did not render the bill demurrable; the court may at its discretion allow a reasonable attorney's fee to the solicitors of the parties, to be taxed as a common charge on all the interest, and payable out of the proceeds in case of a sale. Code, §§ 3010, 5219; De Ramus v. De Ramus, 205 Ala. 219, 87 So. 354; Musgrove v. Aldridge, supra; Bidwell v. Johnson, 191 Ala. 195, 67 So. 985; Long v. Long, 195 Ala. 560, 70 So. 733.

Some reference is made in argument to what is termed a "blank" in the first line of paragraph 3 of the bill. The averment in the bill (shown by the record) reads:

"That your _____ is the owner of an undivided three-fourths (3/4) interest in said real estate." It is obvious that the blank is merely a typographical omission of the word "orator," and that the obvious meaning of the averment is fully shown and supplied by the words immediately following the same, viz.:

"And that said respondent Sterling A. Wood is the owner of an undivided one-fourth (1/4) interest in the said real estate; that your orator's said undivided three-fourths ( 3/4) interest in the said real estate is subject to a mortgage thereon," etc.

This sufficiently indicates that the word "orator," used in the two preceding paragraphs of the bill, was supplied by the context. Clinton Min. Co. v. Bradford, 200 Ala. 308, 312, 76 So. 74. However, it will be further noted that in the second paragraph

of the bill it is averred that-

"Your orator and the said respondent Sterling A. Wood are joint owners or tenants in common of the following described real estate."

And in the fourth paragraph it is averred that-

"Said real estate cannot be equitably divided or partitioned between your orator and said responde

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