Fitts v. Craddock , 144 Ala. 437 ( 1906 )

TYSON, J.

The real estate sought to be sold for partition, prior to the acquisition by complainant of any interest therein, was owned jointly by Berry and Craddock each owning an undivided one-half interest.

Complainant acquired Berry’s interest. Craddock died leaving a will, by which he devised to his wife a life estate in the property and a remainder to a certain named person or persons, who are made parties respondent to the' bill. Complainant acquired this life estate. It is shown that the property could not be equitably divided.

On motion the bill was dismissed for want of equity.

At one time it was doubted whether partition could be declared in favor of a tenant for life so as to effect the estate of a remainderman. Under the older authorities the impi’ession ■ obtained that partition had at the suit of a life tenant was and could be binding only during the continuance of the particular estate, and that when the life estate falls in, there will be a relapse to the status of occupancy in common unless other partition proceedings be resorted to.

But this idea has. long since been departed from and the rule established permitting all interest in the estate to be brought before the court and represented so that a decree may be rendered binding thn and concluding the claims of all remaindermen as well as that of a life tenant.

“If a complete partition be desired, all parties in interest may be brought before the court and all estates, Avhether in possession or expectancy, including those of infants and all persons not in- esse may be bound by the decree.” — Gayle v. Johnson, 80 Ala. 395, 398, and authorities there cited.

In McQueen v. Turner, (91 Ala. 273, 8 So. Rep. 863), it is said: “Partition is a matter of right, and is authorized by the statute among joint owneys or tenants in common holding the lands, without reference to the duration of the estate. It may be compelled as -well against a life tenant as obtained at his suit. The statute confers on the chancery court concurrent .jurisdiction Avitli the probate court to divide or partition or to sell for division or partition, any property, real, personal or mixed, held by joint owners or tenants in common. * * * By authority of the statute, the chancery court, may, in all cases in Avhich the party asking for partition is entitled, decree a sale and divide the proceeds when the property cannot be equitably divided.” It is also held in that case that a remainderman’s interest in the property may be bound by the decree, and may be preserved to him by securing his share of the proceeds at the termination of the particular estate, by requiring bond and security before turning it over to the life tenant. The remedy in equity by partition sajrs Mr. Pomeroy, “is not confined to the tenants in possession, but extends to all persons interested, whether presently or in expectancy, and remaindermen, revisioners, infants -and person not in esse may be bound by the decree.” — 4 Pom. Eq. (3rd ed.), § 1387, and cases cited in note 1.

Under these principles the bill clearly has equity and the decree dismissing it must be reversed.

The respective rights of the respondents as remainder-men, under the will of Craddock in the property sought to-be -sold, as between themselves, are not involved on this appeal. Therefore, a construction of the will to the end of ascertaining which of them are remaindermen and the character of the estate devised in remainder is wholly unnecessary.

Suffice it to say that the averments of the bill clearly shoAv that complainant has an interest in the property, and the extent of that interest, and that a remainder interest belongs to some one of the respondents.

A decree will be here entered reversing the 'decree appealed from and overruling the motion to dismiss the bill.

Reversed and rendered.

Simpson, Anderson and Denson, JJ., concurring.