Harper v. Martin , 194 Ala. 521 ( 1915 )

SOMERVILLE, J. —

An examination of the evidence' in this case convinces us that there was no< fraud, actual or constructive, in the transaction by which the appellee, Martin, acquired his deed to an undivided one-sixth interest in the land in suit, and we hold with the chancellor that the appellant’s cross-bill, impeaching the deed for such fraud, was properly dismissed.

The question of the jurisdiction of the chancery court to sell this land for division is, however, not free from difficulty. The appellant’s estate, at the time she sold an interest to the appellee, a fact known to him, was in remainder only, and the original life estate is still outstanding.

It is conceded by the appellee that chancery courts have no authority to partition or sell for distribution any estate as to which none of the parties has any present interest in use or possession. — Fies v. Rosser, 162 Ala. 504, 50 South. 287, 136 Am. St. Rep. 57. But it is insisted for the appellee — the complainant in the bill for sale and division — that his conveyance from the appellant »is a warranty deed in fee simple, and that the appellant, as grantor, is effectually estopped by her covenants of warranty from now asserting that the common estate is one in remainder only, and thereby defeating any right of the grantee which would be an incident of an estate in fee simple. This view prevailed with the chancellor.

“A person who assumes to convey an estate by deed is estopped, as against the grantee, to assert anything in derogation of the deed. He will not be heard, for the purpose of defeating the title of the grantee, to say that at the time of the conveyance he had no title, or that none passed by the deed; nor can he deny to the deed its full operation and effect as a conveyance.” — 16 Cyc. 686, B.

The right- of partition, in specie or by sale for division, is a valuable right which inheres in the ownership of the property by tenants in common, except as it may be inhibited by statute in special cases. In the instant case the appellee, according to' the solemn covenants of his deed from the appellant, purchased an estate in fee simple from a grantor who owned it in fee simple. He thereby acquired, as one of the valuable incidents of his warranted. ownership, the valuable right of partition or sale for division. The grantor so covenanted, and the deed so operated. This being so, we can find no logical escape from the conclusion that in this suit between these parties, involving as it does the assertion of the specific right under the deed, the common estate must be conclusively regarded as an estate in fee simple, and is subject to division in like manner as are such estates.

It results that the decree of the chancellor must be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.