Pollard v. Jackson , 204 Ala. 31 ( 1920 )

The motion to dismiss the appeal will be overruled. The decree from which the appeal is prosecuted confirmed the sale of lands in which the two married women who are here appellants were interested. They made affidavit in conformity with the statute. Acts 1915, p. 715, amendatory of section 2879, Code 1907. The guardian ad litem was authorized, under section 2866 of the Code of 1907, to prosecute the appeal without giving security for costs. The decree confirming the sale of the lands was a final decree, from which an appeal may be prosecuted, and on which appeal the entire proceedings may be reviewed. McQueen v. Grigsby, 152 Ala. 656, 44 So. 961; Hendrix v. Francis,83 So. 66;¹ Pettit v. Gibson, 201 Ala. 177, 77 So. 703. Therefore none of the grounds for the dismissal of the appeal are well taken.

The petition sought a sale for division of three separate tracts of land, two of which are located in Tallapoosa county and the third is situated in Macon county, entirely separate and distinct from either of the other two, and not connected therewith in any manner.

One of the grounds of objection to the confirmation of the sale was based upon the proposition that the court was without jurisdiction to order the sale of lands in Macon county, and this presents the first question for consideration here.

In proceedings of this character, the probate court is exercising limited statutory jurisdiction. Cruikshank v. Luttrell, 67 Ala. 318. Section 5222, Code of 1907, provides that property held by tenants in common may be decreed to be sold by the probate court of the county in which such property is situated, or, "in case of land lying partly in different counties, of either of such counties, when the same cannot be equitably divided or partitioned among them." The case of Turnipseed v. Fitzpatrick, 75 Ala. 297, would clearly indicate that the probate court was without jurisdiction in the instant case to sell the land lying in Macon county. In the later case of Matthews v. Matthews, 104 Ala. 303, 16 So. 91, the Turnipseed Case, supra, was overruled in so far as it held that a sale by the guardian of the real estate of his ward was void when had under an order of the court wherein the guardianship was pending, and when the lands were situated in another county. We construe the Matthews Case as approving the reasoning of the Turnipseed Case in so far as it would apply to ordinary cases involving the sale of lands for division among tenants in common.

In Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604, it was held that the two systems, that of partition between tenants in common and that of a sale of land for division among them, as provided by our statute, are separate and distinct. Yet there is a relation between the two which may be considered in connection with the question here for determination, as both systems relate to property owned by tenants in common seeking a division thereof. Section 5203 provides for partition among tenants in common on application made "to the probate court of the county in which the property is situate," and section 5204 makes provision where "partition is sought of a tract of land lying partly in different counties"; this latter section being very similar to the language of section 5222 here under review. Section 5212, Code 1907, provides for a sale of land for division if, after a decree for partition and the appointment of commissioners, it shall appear that a just and equitable division of the land cannot be made. The reasoning of the court in Matthews v. Matthews, supra, clearly demonstrates that in the instant case the probate court of Tallapoosa county did not have jurisdiction to order the partition of the lands situated in Macon county; and when this is considered in connection with the above-noted provisions of section 5212, it may well be taken as indicating a legislative intent that there could be no sale for division where no partition in kind could be had, and therefore, under the circumstances here disclosed, there could be no sale among the tenants in common of the lands lying in Macon county by decree of the probate court of Tallapoosa county.

As previously stated, the tract of land in Macon county was entirely separate and apart and some distance from either of the, tracts in Tallapoosa county, and we are of the opinion that the probate court of the latter county was without jurisdiction to order a sale of this particular tract. We think that this suffices for a reversal of the entire decree, for it may appear that without the Macon county lands an equitable division can be had.

The petition in the cause describes the lands and attempts to set out the names and residences of the owners thereof, together with their interests therein. However, the petition was amended more than once and some confusion appears as to the exact interest owned by each and, consequently, uncertainty as to the proper disposition of the funds. The petition was objectionable upon this ground had demurrer been offered thereto. Martin v. Cannon, 196 Ala. 151, 71 So. 996. Several minors are interested in the result of this proceeding, and the above-noted confusion as to the respective interests of the parties furnishes additional reason why the entire decree should be reversed.

We do not find any merit in the insistence that the petition is void upon its face, and that, therefore, the entire proceedings are invalid.

We are cited by counsel for appellees to the case of Meadows v. Meadows, 81 Ala. 451, 1 So. 29, in support of the insistence that on objections to the confirmation of sale only three questions can be considered — whether or not the sale was fairly conducted, the land sold for an amount not greatly less than its real value, and the purchase money sufficiently secured. The Meadows Case involved a sale of land by an administrator for the payment of the debts of an estate, and turned upon the statutory provision in relation thereto. That authority does not militate against the conclusion that the objection to the confirmation of this particular sale upon the ground that the court was without jurisdiction to order the sale of lands in Macon county was well taken, and could be very properly presented upon objections to confirm.

For the reasons indicated, the decree will be reversed and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.

¹ 203 Ala. 342.