Stokes v. Stokes , 212 Ala. 190 ( 1924 )

While precise pleading would require a statement, in terms, of the fractional interest of each of the parties shown to be tenants in common of the lands, yet the interest of each does appear by necessary implication from the facts alleged, whichever alternative averment as to Fleming's interest may be true.

According to the averments of the amended bill Fleming's interest will depend upon the operation of his sheriff's deed upon the interest of John A. Stokes, originally the owner of a one eleventh interest, to which was added by the death of his brother Charles one tenth of a one twenty-second interest. There is no objection to the averment of alternative theories as to the extent of Fleming's interest, nor is there any impropriety in making John A. Stokes a party respondent to the bill, under that alternative, so that doubtful or conflicting claims may be determined.

Our present statute (Code 1923, § 9334), in force since October 6, 1920, is broader than its predecessor, and provides that —

"The court may adjust the equities between and determine all claims of the several cotenants or claimants as well as the equities and claims of the incumbrancers." (Italics ours.) Sandlin v. Anders, 210 Ala. 396, 98 So. 299.

So far as the interests of the parties are concerned, there will be no difficulty in adjusting them properly when the facts are before the court.

It is urged, however, that the bill goes beyond its proper scope and bounds when it attempts to charge alleged debts due from the respondent heirs to their mother, Nancy Stokes, against their share of the interest (apparently either two elevenths or one twenty-second) descended from her to complainant and respondent heirs in equal part, because that would involve an administration of the estate of Nancy Stokes, which, under the most liberal construction of our partition statutes, is wholly foreign to the scope of the bill.

The theory of the bill is that for any debts due to a decedent from his heirs and distributees a lien attaches to their interests in his lands, upon its descent to them, in favor of the other heirs and distributees — the adjustment of which falls within the quoted provisions of section 9334 of the Code, supra.

This proposition was given thorough consideration by this Court in Streety v. McCurdy, Adm'x, 104 Ala. 493, 16 So. 686, and the correctness of this theory and prayer of the instant bill was pointedly affirmed. Its application here is clearly authorized by the broad provisions of section 9334. The bill shows that all the debts of Nancy Stokes have been paid, and hence there can be no necessity for administration of her estate. We have examined all of the contentions made by counsel as to the insufficiency of the bill and find none that are meritorious.

Section 6110 of the Code authorizes counsel to agree in writing upon an abstract of the record, by way of its abridgment on appeal. But no penalty is authorized in case counsel for either party should refuse to make such an agreement when proposed by the other. It appears that the answer and cross-bill of the respondent Fleming was wholly foreign to the issues and purposes of this appeal, and that it fills 11 of the 25 pages of the transcript of the proceedings. It should not have been included, but it was the duty of appellant's counsel to either instruct the register in that regard or else to have moved seasonably for the expunction of the unnecessary matter.

But such a motion must be promptly made at the first opportunity, and comes too late afterwards. Barr v. Collier,54 Ala. 39, 44. No motion has been made in this case, and the question is not properly before us.

The decree of the circuit court will be affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

On Rehearing.