Smith v. Hill , 168 Ala. 317 ( 1910 )

ANDERSON, J.

Partition in kind is matter of right; that it will be difficult, or that injury may result, is no defense to an act of partition.—Gore v. Dickinson, 98 Ala. 363, 11 South. 743, 39 Am. St. Rep. 67; Cates v. Johnson, 109 Ala. 126, 19 South. 416. In order, however, for the chancery court to sell land for division among joint owners, it must be averred and proven that it cannot be equitably divided.—Berry v. Tenn. Co., 134 Ala. 618, 33 South. 8; McMath v. De Bardelaben, 75 Ala. 68. It is also the purpose and intent of the law that a partition should be final and not partial, and the land should be divided among all of the owners, and not by grouping the interests and making a partial division between a certain class.

We may concede that the bill sufficiently avers that the land in question cannot be equitably divided between all of the owners, and that the proof shows that it cannot be done in view of the fact that the land would have to be divided so as to give the complainant seven-twelfths and each of the respondent children, and the wife, one-ninth of the five-twelfths, each, subject to-the life estate of their father, taking also into consideration the area of the land and its character as disclosed by the evidence, we think the complainant made out a prima facie case entitling him to a sale for distribution but for the cross-bill of the respondents. The respondents by their cross-bill seek to have their joint five-twelfths interest set apart to them jointly and which will give the complainant his seven-twelfths interest,, which he can get and with which he must be satisfied, as he has no concern in the other five-twelfths, if the land can be equitably divided at the ratio of seven-twelfths and five-twelfths.

Two or more tenants in common may unite in a bill against another co-tenant, and may jointly elect to consider their several moieties as one moiety, and to have it set apart to them as one undivided fractional share of the whole.—Donner v. Quartermas, 90 Ala. 164, 8 South. 715, 24 Am. St. Rep. 778; Freeman on Co-Tenancy, § 459; 30 Cyc. 240-261. The respondents, by their cross-bill, sought to have their respective moieties treated as one moiety, and to have the same set apart to them as an undivided fractional share of the whole. We can conceive of but little difficulty that the chancery court would experience in having the lands in question equitably divided into two parts, seven-twelfths to the complainant and five-twelfths to the respondents, the wife and children jointly, subject to the life estate of their father to the whole of their said part. Especially can there be an equitable division of this land, in view of the fact, that the respondents invoke the rule of owelty, which the chancery court has the power to award independent of the statute.—30 Cyc. 238. Section 5233 of the Code of 1907, however, gives the right whether it previously existed, in the chancery court or not.

It seems that a decree pro confesso was entered against three of the respondents; that shortly thereafter, and before the publication of the testimony, they filed an answer and adopted the cross-bill of the other respondents, who were not in default. Section 3167 of the Code of 1907 authorizes the setting aside of a decree pro confesso upon the filing of an answer before the publication of the testimony. It seems, however, that the mere filing of the answer does not per se set aside the decree, but it must be set aside upon leave of the chancellor or register, and an answer filed before the decree is set aside will be stricken upon the motion of an adversary party.—Pickering v. Townsend, 118 Ala. 351, 23 South. 703. In the case cited, a motion was made to strike the answer, and it was granted, and this court held there was no error in striking the answer; but in the case at bar there was no objection to the answer and cross-bill because three of the respondents were in default, the cross-bill was answered by the complainant, and the cause was submitted in part without objection on said answer and cross-bill. We will therefore presume that leave was given to file the answer and the default was set aside, or that the default was waived by the complainant upon answering the cross-bill, and who did not see fit to avail himself of the decree pro confesso.

The chancery court erred in granting the complainant relief upon the original bill, and in not granting the respondents the relief sought by their cross-bill, and the decree, is reversed, and one is here rendered denying relief under the original bill, and the cause is remanded for further proceedings.

Reversed, rendered, and remanded.

Simpson, Mayfield, and Sayre, JJ., concur.