Bragg v. Beers

71 Ala. 151 | Ala. | 1881

BBICKELL, C. J.

It is true that a court of equity, in the absence of a statute conferring the jurisdiction, will not decree a sale of the lands of an adult, to. make partition, without his -consent.-Deloney v. Walker, 9 Port. 497. The statutes confer on the court of probate jurisdiction to authorize the personal representative - to sell lands descended or devised, when they, are incapable of an equitable division among the heirs or •devisees.-Code of 1876, § 2449. And jurisdiction is also conferred on the court to order the sale of lands, or of personal property, held by joint owners, or by tenants in common.-Code of 1876, § 3497 et seq. A sale of property, real or personal, held jointly or in common, which is incapable of a fair partition, under a decree of' a court of, competent jurisdiction, is a favored policy of the legislation of the State.

Before the jurisdiction of the court of probate to settle an administration, and to make division and distribution, has been put in exercise, without the assignment of any special cause, devisees or heirs, -legatees or distributees may resort to a court of equity for a 'settlement of the administration, and for the payment of legacies, the, distribution of personal assets, and for a division of lands devised or descended.-McNeill v. McNeill, 36 Ala. 105. The court, proceeding according to its own practice, is governéd by and applies the law controlling-the settlement of administrations, the distribution of assets', or the partition or division of property, which prevails in the court of probate. The parties lose neither right nor remedy by resorting to a court of equity, instead of invoking the jurisdiction of the court of probate. If, to effect a final settlement, distribution and partition, a sale of lands is necessary, the court will order the sale in all cases in which, under like circumstances, the court of probate would have had jurisdiction to order it.-Wilson v. Crook, 17 Ala. 59; Hall v. Wilson, 14 Ala. 295.

The purposes of the present bill, filed by legatees and devis-ees, are a settlement of the administration, a distribution of the personal assets in accordance with the will of the testator, and a sale of the lands devised, to effect a division justly and equitably among the devisees. Upon its allegations, if-the administration remained in the court of probate, it would be the duty of the personal representative to obtain an order for the sale of the lands devised, to effect a divisioW among the devisees. The court of equity may and should decree the sale. 'It is necessary to secure to the devisees the full measure of right to which they are entitled.

The mortgagees of the undivided interest of several devisees executing the mortgages are necessary parties to the bill. They have an interest in the subject-matter of suit, and, in their absence, a clear, unembarrassed title to the lands could not be ■sold, and no other ought the court to decree sold and conveyed. The demurrer to the bill was properly overruled, and the decree of the chancellor is affirmed..