Smith v. Brasseale , 213 Ala. 387 ( 1925 )

Appellee filed the bill seeking the sale of a piece of land, which descended to the parties as cotenants from their common ancestor. Appellant Smith filed his cross-bill, averring an agreement between himself and the other cotenants — of whom there were two besides the original complainant — by which they had agreed that he should have possession for the purposes therein stated, and, in substance, it may be conceded that there should be no partition among them. Cross-complainant averred, among other things, that original complainant, in violation of the agreement between the parties, had usurped possession and control of the land, and refused, after demand, to surrender possession or pay rent. The prayer of the cross-bill is that the agreement be enforced and the cross-complainant restored to possession. The trial court sustained a demurrer to the cross-bill; hence this appeal.

Conceding that the agreement in question may be construed as a contract against partition or division without complication, it should be upheld as such contract for a reasonable time. Agreements for the perpetual forbearance of a suit for partition are contrary to that policy of the law which maintains the right of partition as an absolute right, which yields to no consideration of hardship or inconvenience. Freeman, Cotenancy and Partition (2d Ed.) § 442; Haeussler v. Missouri Iron Co., 110 Mo. 188, 19 S.W. 75, 16 L.R.A. 220, 33 Am. St. Rep. 431. But "the right of cotenants to bind themselves to waive or postpone for a reasonable time the right of partition seems to be well established." 20 R. C. L. p. 717. The agreement shown by the record, if construed as a promise on the part of the cotenants to forbear suit for division pending appellant's management of the property for the purposes indicated, must be construed as stipulating such forbearance for a reasonable time only. 1 Williston on Contracts, § 38. What would be a reasonable time in the present case, in the absence of a stipulation for perpetual forbearance, or for some definite time, would depend upon consideration of the lawful purposes for which the promise was made and the time to be consumed in its performance. Williston, ubi supra; McFadden v. Henderson, 128 Ala. 221, 29 So. 640. We are unable to say that the agreement against division was void on its face.

But the promise to forbear division or partition was made for the purpose of insuring to appellant an opportunity to execute the agency, the power of attorney, conferred upon him by the agreement. The agreement conferred upon him no interest except as agent or attorney, and that alone is the interest he now seeks to conserve and enforce. It created no interest in the land but only in the exercise of the power. Such being the case, the agency was revocable at the pleasure of any party thereto. Millican v. Haynes (Ala. Sup.) 103 So. 564. Appellee's alleged breach of agreement, and her prosecution of this suit, must be accepted, necessarily, as a revocation of the agency created by the agreement, and, that revoked, nothing of the substance of the agreement remains. So far as concerns the application of these principles, it is immaterial that the party revoking was only a part owner of the property, and that the agent was one of the owners in common. Barrett v. Bemelmans, 163 Pa. 122, 29 A. 756; 2 C. J. 528, note. If it be that, in withdrawing the power to bind her, appellee breached her contract so as to be liable in damages, she nevertheless had the power to revoke. Millican v. Haynes, supra; 2 C. J. 528, note.

The decree sustaining appellee's demurrer to appellant's cross-bill is due to be affirmed.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.