Fennell v. Tucker , 49 Ala. 453 ( 1873 )

PETERS, C. J.

— The Revised Code of Alabama authorizes the partition, or division, of any property held by joint owners, or tenants in common, upon application by petition in writing to the judge of probate of the proper county. This suit is a proceeding under this statute. The law conferring jurisdiction on the judges of the Probate Court for this purpose is in these words: “Any property, real, personal, or mixed, held by joint owners or tenants in common, may be divided among them, on the application of the persons entitled thereto, or any one of them, in writing, to the judge of probate of the county in which the property is. Such application may be made by the executor or administrator of a deceased person in interest, or by tbe guardian of a minor or person of unsound mind.” Rev. Code, § 8105. This secti&n of the Code simply authorizes a division of the property held by joint owners, when such division can be made. But another section of the same law empowers the judge to decree and order a sale, when an equitable division cannot be made. This latter section is in these words: “ Judges of the Probate Court may decree and order a sale of all property, whether real, personal, or mixed, held by joint owners or tenants in common, when the same cannot be equitably partitioned or divided between such joint owners or tenants in common, notwithstanding they, or any number of-them, are infants or persons of unsound mind.” Rev. Code, § 8120. Other sections of the Code direct the method of proceeding, and limit the jurisdiction of the court in a single instance. The limitation is thus defined: “ No division or allotment can be made under this chapter, where an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners or judge of probate.” Rev. Code, § 3118.

It will be seen, from the sections of the law above quoted, that the jurisdiction thus conferred upon the judge of probate divides itself into two branches : first, when the purpose of the suit is to make partition, and divide the lands among the joint owners, without a sale; and, second, when the purpose of the suit is to obtain a decree and order for the sale of the lands, when they cannot be equitably partitioned or divided among the joint owners or tenants in common. In either instance, the jurisdiction is invoked and put in force by petition in writing, by a proper party, to the judge of probate of the county in which the property is, which petition is required to set forth certain facts. In this suit, the application is to obtain a decree and order of sale, instead of an order for partition. When this is the case, the Code requires that, “ upon the petition or application in writing of any of the parties mentioned in the preceding action, their guardians, or other lawful representatives, setting forth that such property cannot be equitably partitioned or divided without a sale of the same, the judge of probate must, upon filing of such petition, appoint a day for the hearing of such petition, not less than thirty days from its filing.”, The petition should also “ set forth the names of all the persons interested in the property, and their residence, the property sought to be divided or partitioned, the interest of each person in the same, the number of shares into which it is to be divided; and if the application be for partition of land, a full and accurate description of such land.” This chapter of the Code is to be construed together as one law, and its provisions, when applicable, regulate all the proceedings under it. 9 Bac. Abr. (Bouv. ed.) p. 243,I. 3, and cases there cited. In this case, the petition seems fully to comply with all the requisitions of the statute. It also alleges that Sallie Fennell, one of the joint owners, is a minor, and that it would be to her “ interest to have said land sold for such partition or division.” Such a petition' is a sufficient and legal statement of the petitioners’ right to the relief they ask, and it invests the court with jurisdiction to act in the premises. It cannot, therefore, be defeated by demurrer ; and the court below, consequently, erred in sustaining the demurrer.

2. But, as the objections to the petition, and to the relief sought under its allegations, and the judgment of the court are somewhat anomalous, it is proper to add some instructions as to what may be regarded as a proper practice under this important statute. The petition is a statement of the facts, upon which the judgment of the court' is invoked. This should contain all the allegations of facts that are required by the law to authorize the court to proceed. If this is not done, the pleading is obnoxious to demurrer. But, after demurrer sustained, the petitioners have the same right to amend that they would have in any other pleading. This is a civil case, and the law of pleadings applicable to civil cases is applicable to it. It should be “ as brief as is consistent with perspicuity, and the presentation of the facts or matter to be put in issue, in an intelligible form.” 'Rev. Code, § 2629. And the plea, or answer to such a petition, should “ consist of a succinct statement of the facts relied on in bar or. abatement of the suit.” Rev. Code, § 2638; also, 7 Bac. Abr. (Bouv. ed.) pp. 457 et seq., Pleas & Pleading. In such a suit as this, if a pleading “ is unnecessarily prolix, irrelevant, or frivolous, it may be stricken out, at the cost of the party so pleading, on motion of the adverse party.” Rev. Code, § 2630. The sufficiency of the complaint, or petition, may be put in issue by demurrer ; but the demurrer should distinctly state the objections intended to be relied on. When this is not done, the demurrer should be overruled. Rev. Code, § 2656. And either before or after judgment on demurrer “ the court must permit an amendment of the pleadings,” if this can be made. Rev. Code, § 2657. Then, any fact necessary to be set forth in the petition, the proof of which is required to authorize a judgment of the court favorable to the petitioner, may be denied by plea; or it may be shown, on suggestion to the court, that an adverse claim or title is asserted by some one, setting forth the name of the person or persons in some proper manner. This should be done as con-”, cisely as an intelligent statement of the facts will permit, without incorporating in the plea the evidence of the facts which are relied on to prove them, as seems to have been attempted in this case. But, whether there is any objection by way of plea, in bar of the relief asked, unless the parties are all of full age, and competent to act for themselves, and consent to a decree, the judge of probate, on the final hearing, should be “satisfied from the proof that the property described in the petition is held and owned jointly, or in common,” by the parties to the suit, as alleged in the petition; and also by “ evidence taken as in chancery cases,” when the application seeks a sale, “ that an equitable partition or division cannot be made; ” and when the application is on behalf of an infant, or person of unsound mind, it must appear that a sale would be to the interest of the infant or person of unsound mind. Rev. Code, §§ 3108, 3123, 3124. Otherwise, the application should be denied.

3. Mrs. Judith Tucker shows no claim or title to the lands in controversy, which can be properly designated as adverse. She is one of the contestants in the court below; and the record shows that she parted with all her title by her conveyance, and the decree in the chancery suit, to the joint owners named in the petition. Her right of lien on the land, as a security for the payment of the annual allowance to her to be paid by the joint owners of the land, as shown in her agreement with them, cannot be displaced or disturbed by the sale or partition of the land under decree of the court. Whether there is a sale or partition, the land remains subject to her lien. Rev. Code, § 3114.

4. The claim or title of Mrs. Margaret Tucker, wife of William J. Tucker, is not adverse. She is a tenant in common with the other joint owners, to the extent of her husband’s right, if her title is valid. Rev. Code, § 1582. She acquired her husband’s right and title to the land by his conveyance to her; and she is the owner of his title, to the extent of her conveyance, until'that is set aside. This makes her a joint owner with the other joint owners. Such a claim or title cannot be adverse to the other joint owners, else the statute itself would be without effect. Any joint tenant could defeat the division, or sale for division. This is evidently not the meaning or purpose of the statute. Tenants in common hold by unity of possession, though they may hold by several and distinct titles. 4 Kent, 367, 368, marg.; 5 Bao. Abr. (Bouv. ed.) pp. 239, 240, A. If the husband of- Mrs. Margaret Tucker held her title, he could not resist the application of the petitioners. Then, neither can she; for, in her title, she holds just as he would have held.

It is not at all certain that the court, on the trial below, rendered judgment on the merits ; though it appears from the record that the evidence on both sides was submitted, and the final decree recites that the court, “ after carefully hearing and considering the evidence in the cause, doth order, adjudge, and decree that the answers and demurrers be sustained, and the petition be dismissed, at the costs of the applicants.” This must be regarded as a judgment on demurrer, and possibly also on the merits. But it has already been shown that the judgment on the demurrer was erroneous. And I am not able to see how the judgment on the merits can be sustained on the evidence adduced. The proof very clearly shows that the petitioners were joint owners of the lands with the parties made defendants; it also shows that the lands could not be equitably divided; and it wholly fails to show the assertion of any adverse claim or title which could defeat the sale. It is true that it is not shown that a sale of the lands would be for the interest of the infant joint owner. But, in an application for an order to sell, this is not necessary, unless the application is made by the guardian of the minor, which is not the case here. Coker v. Pitts, 37 Ala. 692; Rev. Code, § 3122. Then, it seems, both upon the demurrer and upon the proofs, that the decree and order of the court below should have been for the petitioners, who are the appellants in this court.

The judgment of the court below is therefore reversed, and the cause is remanded for a new trial, in conformity with the law as declared in this opinion. The appellees will pay the costs of this appeal in this court and in the court below.