Shepard v. Mount Vernon Lumber Co.

McCLELLAN, J.

The appellee has persistently-sought the right it conceives to he its due under a contract whereby it purchased and took the title to certain standing timber on certain lands. A full statement of the conveyance and the cause may be found in the report of this appellee’s appeal in 180 Ala. 148, 60 South. 825. The appellee took conveyance and title to described standing timber, and engaged to remove it from the land within five years from the 19th day of April 1901. On the appeal of the cause just mentioned, wherein the lumber company sought to have its title to the standing timber made available and the appropriation of its timber facilitated, notwithstanding the five-year period in Avhicli the company had engaged to remove the timber had expired. It was ruled (180 Ala. 148, 60 South. 825) that the bill Avas Avithout equity, for that it. sought to invoke the court’s jurisdiction to the end that a trespass upon the land of the grantors in the conveyance to the company might be sanctioned, authorized, and enforced. The lumber company then brought an action of ejectment to recover the standing timber described in its conveyance. It was held on appeal (190 Ala. 574, 67 South. 286, 687) that the company could not prevail; and so for the reason on which the previous appeal (180 Ala. 148, 60 South. 825) was rested, viz., that, though holding the title to the timber the possession, of which was sought to he recovered in the ejectment suit, to- issue judicial process to consummate that possession would be to aid in and to- effectuate a trespass by the company. The judgment against the company in the ejectment suit was hence affirmed.

(1) Now, the lumber company has filed a bill to have the land sold (including, of course, the timber), on the ground that the property cannot be equitably divided without a sale, and invoking the court to ascertain, appraise, and apportion the respective values of the timber, to which the company has titles, and the land.

Artcile 1 of chapter 121 of the Code (section 5203 et seq.) affords the positive law governing partition and sales' for division of lands held by “joint owners or tenants in common. Code, § 5231, provides: “The chancery court shall have jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common, whether the defendant denies the title of the complainant or sets up adverse possession or not.”

The statutory process whereby lands may be sold by the courts of chancery for division of the proceeds among the joint owners or tenants in common is a substitute for partition in kind: the proceeds of the sale taking the place of the land and the -respective rights of the joint owners or tenants in common to- the money being apportioned in proportion to the undivided interest of each in the land. — Kelly v. Deegan, 111 Ala. 152, 156, 157, 20 South. 378, 379, 380. In this case it was said “While a court of equity had jurisdiction, concurrent with courts o-f law, to decree the partition of lands held by copartners, joint tenants, and tenants in common, it was without jurisdiction to decree a sale of the lands, if the tenants, or either of them, were adults, and not consenting. — Deleney v. Walker, 9 Port. 497. The statute (Code 1886, § 3262) now confers the jurisdiction, concurrent with that of the court of probate, ‘to divide or partition, or to sell for partition,’ whether the tenants are adults or infants. The essential, controlling element of the jurisdiction is that the lands ‘cannot be equitably divided or partitioned’ among the tenants. — Code 1886, § 3253. When this fact exists, a sale at the instance of either tenant is matter of right, as actual partition at common law was matter of right, without inquiring whether it is of benefit or injury to the other tenants.- — -Freeman on Cotenancy and Partition, § 539. The decree of sale is obtained only by an adversary judicial proceeding, and the sale is compulsory. It works a conversion of the lands into money, but it is not destructive of, and works no change in, the relations and rights of the parties; the money stands in the place of the lands, and is divided as the lands would have been divided if of them there had been actual partition.”

According to the statutes, a sale of land for division cannot be had unless the land cannot be equitably partitioned among the joint owners or tenants in common thereof. And in further exposition of the subject it was said in Kelly v. Deegan, supra: “The indispensable element of every -compulsory partition is a cotenancy. Whatever other relation may exist, if this relation does not exist, there is no right to partition.”

It Avill hardly amount to addition to this statement to say that a-cotenancy is an indispensable element of every compulsory sale for division under our statutes; and that, if there is no cotenancy, there is no right to a sale for division. Expressive of the same fundamental principle, it Avas pronounced in Brown v. Feagin, 174 Ala. 438, 443, 444, 57 South. 20, 22: “The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of and against tenants in common, and the equity of the bill filed for either purpose is founded on the community of title or interest in the several parties complainant and defendant.”

In treatment of a bill wherein partition was sought, this court pertinently said, in Berry v. T. C. I. & R. R. Co., 134 Ala. 622, 33 South. 9: “Indeed, it is required of complainant that it should show a clear title to cm undivided interest in the lands sought tú be partitioned.” (Italics supplied.)

The proposition, under like circumstances, was thus emphatically stated in Russell v. Beasley, 72 Ala. 190: “It is required of the complainants, however, that they should show a clear title to an undivided interest in the lands sought to be partitioned.”

The cause in that instance was disposed of upon the ground that the evidence did not “show any estate in common between the complainants and the defendant in the suit, either by way of a joint tenancy, or a tenancy in common.” And it was also therein pronounced that: “It avails nothing to prove title to a distinct portion of the land proposed to be partitioned, for the essence of the estate in common, necessary to be here shown, is that the tenants should ‘own undivided parts, and occupy promiscuously, because neither knows his own severalty.’ ”

Other of our decisions, concluding to the same effect, might be noted.

In Thompson v. Mawhinney, 17 Ala. 362, 368, (52 Am. Dec. 176), it was said: “Tenants in common are such as hold by several distinct titles, but by unity of possession, because none knoweth his own severalty, therefore they all occupy promiscuously. * * * Unity of possession therefore is the very essence of a tenancy in common, and without it this tenancy cannot exist..’’ — Pruitt v. Ellington, 59 Ala. 454, 458; Austin v. Bean, 101 Ala. 141, 16 South. 41.

Where the owner of land conveys to another the title to mineral in situ or to standing timber (both realty in the view of the law), the result is to create two closes adjoining but separate (the one the land proper, and the other the mineral or standing timber, conveyed, as the case may be). — B’ham Fuel Co. v. Boshell, 190 Ala. 577, 67 South. 403; Hooper v. Bankhead, 171 Ala. 626, 54 South. 549.

(2) The application of the established principles, we have but restated, to the status shown by this bill, leads unescapably to the conclusion and to the result that the bill is without equity; that the demurrer was erroneously overruled. The only title or right, in respect of the land described in .the bill, claimed for the lumber company, is the standing timber to which, under our decisions that have long since established a rule of property in this state, the company has the title. The conveyance to it of the standing timber made a close distinct from that of the soil, the title to which was not conveyed to the lumber company. The severance thus wrought was so effectual in its separation of the estates into Avhich this real estate was susceptible of division that the soil owner was and is without title or right to the timber conveyed, and the grantee of the timber, the lumber company, was and is without title or right in or to the estate in the land not conveyed to it. In such circumstances, there could be no cotenancy, joint ownership, or tenancy in common within the purview of our partition statutes. Under very similar circumstances, the Supreme Court of Mississippi, Chief Justice Smith delivering the opinion, ruled to the like effect in Forest Mfg. Co. v. Buckley (Miss.) 66 South. 279. It was therein aptly said: “It seems clear that the parties hereto' do not hold the property in question either as joint tenants, tenants in common, or copartners, and' therefore they do not come within the terms of the statute. Appellee has parted with all of his title to the trees, and has no further interest therein. Appellant owns no part of the land as such, but simply owns the trees standing thereon, with- the incidental right of having them remain on and receive sustenance from the soil until they shall be cut and removed. The situation of the parses hereto is substantially the same as that of persons who own different rooms in the same building, or as that created when the owner of the soil sells the coal or other mineral lying beneath the surface; and it has never been held, so far as we are aware, that parties thus situated are joint tenants or tenants in common.”

The Supreme Court of Pennsylvania, in Dexter v. Lathrop, 136 Pa. 565, 20 Atl. 545, 548, make a like pronouncement on the question here under consideration, that there was no cotenancy.

There is no unity of possession or of right to possession between a party holding the title to standing-timber and a party owning the land, as sueh, on which the timber rests. In the absence of such unity of possession or right to possession, there can be no cotenancy of land. There is nothing to the contrary in the decision delivered in Christopher v. Curtis Lumber Co., 175 Ala. 484, 57 South. 837. It does not deal with the relation of cotenancy, upon the existence of which the result in this cause depends; but with the matter of notice predicated of possession. To affirm that a grantor is the “quasi bailee” of the grantee in a conveyance of timber standing on the land owned by the grantor, where nothing has been done to- render actual the grantee’s possession of Ms purchase, is certainly not the affirmation of a legal status which has in it any element of a relation of cotenancy.

The case of Harrell v. Mason, 170 Ala. 282, 54 South. 105, Ann. Cas. 1912 D, 585, is said to be opposed to the conclusion at which we have arrived. Our view is that, while there are expressions in that opinion, by way of dicta, which might afford a premise for a conclusion opposed to that prevailing on this appeal, the doctrine of the decision in Harrell v. Mason admits a complete reconciliation with established principles of equity jurisprudence as it is administered in this state. The inapplication of the Harrell-Mason decision to the cause under review lies in the fundamentally differentiating fact that in the cause at bar there was effected in 1901 a full severance in estate of the timber interest from the interest (not coveyed) of the owner in the land as such. In the Harrell-Mason Case one only of the co-tenants of the land (the timber interest being then unsevered in estate) conveyed to Harrell only his undivided interest in the timber standing thereon. The conveyance to Harrell was binding and effectual between and upon the parties to that conveyance, but ineffectual to prejudice any of the rights of the grantor’s cotenants. — O’Neal v. Cooper, 191 Ala. 182, 67 South. 689, 690. Where such a conveyance, by one of the cotenants, is made, a court of equity will treat the grantee as so far subrogated to rights of his grantor (cotenant in fact when he conveys to' the grantee) as that, in virtue of the rights of his grantor, he may file a bill in his own name, reciting the facts, to have partition or a sale for division when partition in kind cannot be equitably effected; and on such a bill a court of equity may ascertain and adjust and vindicate the rights of the grantee, complainant, if consistent with, and not prejudicial to, the rights of the cotenants.— O’Neal v. Cooper, supra. See, also, Charleston R. R. Co. v. Leech, 33 S. C. 175, 11 S. E. 631, 26 Am. St. Rep. 667. But this equity is not predicated of any relation of cotenancy enjoyed by the grantee, for none he has; on the contrary, it is the recognition and enforcement, without prejudice to the rights, or interest of the grantor’s cotenant, of a right growing out of the cotenant’s conveyance and clothing him with the conveying co-tenant’s right to have partition or a sale for division, subject to the limitation that the rights of the cotenants be not prejudiced thereby. When the Harrell-Mason decision is referred to that right in the conveying cotenant’s grantee (Harrell), it is sound; otherwise, it would be in conflict with the long-established rule that cotenancy cannot exist without unity of possession or of right to possession. The conveyance to Harrell did not purport to invest him with any interest in the land as such. He was not a cotenant, in any sense. We need hardly add that appeal to the rule, that “equity will not suffer a wrong without a remedy,” cannot avail or apply here to constitute the essential relation or cotenancy where that relation does not exist.

The decree is laid in error. It is reversed,. and a decree will be here entered sustaining the demurrer and .dismissing the bill.

Reversed and rendered.

All the Justices concur in the conclusion and in the opinion, except as stated in addenda opinion of Justice Mayfield.