Harrison v. Taylor , 111 Ala. 317 ( 1895 )

HEAD, J.

On bill for partition of lands among joint owners or tenants in common, if the alleged title of the complainant is equitable merely, and claims — adverse to that title- are set up by the respondents, or either of them, the court of chancery will itself adjudicate the conflicting claims and decree partition, or not, accord: ing as the complainant may or may not prevail in his assertion of bis own and the respondent’s ownership ; but if the bill shows the complainant to be seized of the legal estate in his asserted undivided interest, and apparently bona fide adverse'claims are set up by a respom dent, the court will not adjudicate the conflict, but may direct it to be tried according to the course of the common law, in its own or the appropriate legal tribunal.— Horton v. Sledge, 29 Ala. 478; Hillens v. Brinsfield, 108 Ala. 605; Code of 1886, §§ 3585, et seq.

The present bill expressly avers that John Childers died seized possessed of the lands in controversy, leaving, besides his widow, Harriet Childers, his three children, consisting of complainant, his daughter, and Ross and Guilford Childers, his sons, as his sole heirs at law; and seek's partition, and the allotment to complainant of her one-third interest, as such heir. Thus her estate is shown to be strictly legal. The bill avers that the widow, Harriet, held the land in dower, under due allotment, during her life ; and, pending that estate, pur-, chased and acquired by deed the title of said Ross and Guilford, whereby she became the owner in fee of an undivided two-thirds interest, and a tenant in common with complainant — the latter’s interest being an undivided one-third in fee, dependent upon the widow’s precedent estate for life. The widow died in 1892, and respondent, Taylor is éxecutor of her will, to whom, it is prayed, that the two-thirds interest of his testatrix be allotted. It is not shown who are the devisees or heirs of the testatrix, but one Mary Alexander is made a party defendant, upon the averment the she claims to be the devisee, or to have some interest in the land. There is in the bill, no qualification Of the averments which, as we have said, show the complainant to be seized of the legal estate in her one-third interest; but it is averred that said Taylor as executor denies that complainant is one of the heirs at law of said John Childers, and has any interest in the lands in controversy, or the rents thereof, which rents he has collected and refuses to pay complainant her share. Thus we have, according to bill, a wrongful ouster or disseizin of the complainant by the said executor, and an adverse holding by him, which can be determined only by a trial, as at the common law.

The remaining allegations of the bill set up certain' facts, and certain judicial proceedings to which said testatrix was a party, which, it is insisted, constitute an equitable estoppel upon her executor, or devisee, or heir, to now aver, in answer to the bill, that complainant was not an heir of John Childers, entitled, as such to inherit her share of his estate. It is not claimed, nor can it be, that these facts and proceedings relied upon as an estoppel conferred any legal title upon complainant, whereby their averment might be treated as cumulative of those preceding which show a legal title. Nor can the alleged equitable estoppel possibly aid the perfect legal title shown by the bill. It is obvious, therefore, in the frame of the present bill, that the court can take no cognizance of these allegations of estoppel. If the bill had shown that the complainant, in fact, was not an heir, and held no legal title, but relied, for her interest in the land, upon her right in equity thereto, by virtue of the alleged estoppel, the case would be differently presented, and we should determine, upon the allegations, whether or not an estoppel had arisen. As the case, now is, the chancellor pursued the proper course, and his decree must be affirmed..

Affirmed.