Coker v. Pitts , 37 Ala. 692 ( 1861 )

STONE, J.

The present application, for the salé of? slaves for division, was made trader the act approved Peb- ■ ■ruary 5th, 1S56, which act was amendatory of the act approved February 15th, 1854, and of section 2677 of the Code. — See Pamphlet-Acts-of 1855-6, p. 20; Acts of-1853-4, p. 7. The petitioners in this case were not guardians of infants, or persons of wnsound ■mind ; but peti tioned in their own right,- they being adults.- The proof taken in the cause conclusively shows, that an. equitable “partition or division” of the slaves can not be made without a sale; but it is not shown, that it would be to the interest of the infants, who are part-owners of this prop- - erty, to sell the same. It is here contended, that the order of sale should not have been granted in the absence of " such proof-:' In support of-this position, the appellants rely on the 5th section of the act of February 5th, 1856, which declares, that, “before granting any application .under this act, the said judge of probate must be satisfied by evidence, taken as in chancery.cases, .that'an-equitable partition or division can not be made; ’and, when the application is'by the guardian of any one or more of. the infants or persons of unsound mind, the. judge ot probate must not only be satisfied that such property can'not be equitably divided, but that it would be.to the interest oí such- infants or persons of unsound mind to* sell the samé, for 'the purpose of-partition and division.”

This argument can noUbé'maintained*.. It runs counter to the express language of the statute, and to the familiar maxim of-the law, inclusio unius esU exclusio. alterms. Moreover, there is strong reason for requiring proof that the interest of- the infants*.- would be promoted by a sals* when the guardian is the actor in the proceedings. In such case, the guardian alone manifests a wish to sell; and sound impolicy. would dictate' that his'wish-' should not be gratified, unless it would be to-, the interest of the infants to sell. The case is quite changed;. when. adult part-ownei-s ask a sale for division. .’Their interests are co-equal with those of the infants. Their right: to -have. the possession of their property, and to- have their wishes in the premises gratified, is to be respected -equally with the interests of the infants. It would be monstrous to hold, that adult part-owners should be kept out of the enjoyment of their property, .merely; because other part-owners were infants, and -sthe interests-,-©! such infants did not require-that the property should be sold.

Judgment of the probate -court affirmed. Let the costs - of this appeal be paid - by the appellant, Thomas J. Smith.