57 So. 20 | Ala. | 1911
The bill of complaint is filed.by Arthur L. Brown, as complainant, against John. .Vary,Chas. D. Smith, Walter L. Smith, Celia Smith, Chas; D. and Walter L. Smith, as administrators of the. estate of.R. D. Smith, deceased, and the Alabama National Bank, a corporation. It shows that complainant owns an undivided one-tenth interest in the land described in the bill, and that the respondent John Vary owns the remaining undivided nine-tenths.
The relation of the other respondents to the 'cause-is shown by paragraph 10 of the bill, as follows: “Complainant avers that respondents Charles D. Smith, Walter L. Smith, Celia Smith, and Charles II. Smith and Walter L. Smith, administrators of the estate'of C. .E>. Smith, deceased, ■ and the Alabama National Bank, claim to have or own some kind or character of interest in said lands, which said claims cast and create a cloud upon the title of complainant and that of respondent John Vary to said lands.”
The prayer for relief is: “That all said respondents be required to propound their interests in the lands mentioned in this bill of complaint; that upon final hearing of this cause the interests of all parties concerned be ascertained, and that said lands mentioned may be sold under decree of this court for division, or divided by metes and bounds in the event the court should ascertain that said lands can be divided by metes
The respondents Smith interposed a demurrer to the bill;‘assigning 16 grounds, and the chancellor sustained the demurrer generally, from which decree complainant appeals. The only grounds we need now notice are the following:
“(3) For that said bill fails to allege that there is no suit pending to try the title to the property which is the subject-matter of the bill.
“(4) For that the bill fails to aver or show that the complainant was in the possession of the property described in said bill at the time the said bill was filed.”
“(6) For that said bill is multifarious, in that it seeks two remedies and reliefs, to wit: It seeks to have said property sold or partitioned, and it seeks to have the title to said property quieted and cleared.”
“ (8) For that it does not appear from the allegations of said bill that said lands are held by the parties to this suit as joint owners or tenants in common.”
Considered as a bill to quiet title, the bill here exhibited is plainly defective, and subject to the third and fourth grounds of demurrer.- — Brown v. Hunter, 121 Ala. 210, 25 South. 924; Moore v. Alabama National Bank, 139 Ala. 273, 35 South. 648. But judged by its averments and prayer for relief, which are apt and ample for the purpose, it must be treated as being primarily a bill for partition between joint owners.
As we understand the contention of the complainant, it is that under sections 5231 and 5232, Code 1907, any
Section 3187, Code 1896, now section- 5231, Code 1907, is: “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.” As explanatory and definitive of this jurisdiction and its incidents, section 5232 Avas inserted in the Code of 1907, which is as folloAvs: “If the title of the complainants seeking partition or sale of lands for a division shall be controverted, it shall not be necessary for the court to dismiss the bill or delay the suit for an action at law to try the title, but the question of title shall be tried and determined in the suit by the chancery court,, which shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion incumbrances, if partition be made of land incumbered and it be deemed proper to do so; and the court may adjust the equities between and determine all claims of the several cotenants, as well as the equities and claims of the incumbrancers.”
The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of
Independently of section 5232, above quoted, courts of chancery, having acquired jurisdiction for partition between joint owners, could and did employ their general powers “to adjust the equities between the parties, growing out of their ownership of and relation to the property, and the connection of their interests with those of their cotenants, and with the general equity or right of the complainant.” — Marshall v. Marshall, 86 Ala. 383, 5 South. 475; Gore v. Dickinson, 98 Ala. 363, 11 South. 743, 39 Am. St. Rep. 67. It is therefore, perhaps, safe to say that section 5232 is no more than a statutory specification of the incidental powers of chancery courts in relation to partition proceedings between tenants in common, as already recognized by the decisions of this court. ■
And it seems perfectly clear, both under this statute and the various decisions which it codifies, that these powers and modes of relief are merely incidental to the partition which is the primary purpose and essential equity of the bill. As said, per Thorington, J., in Gore v. Dickinson, 98 Ala. 369, 11 South. 745, 39 Am. St. Rep. 67: “The prime object of the bill is to obtain partition of the property, and the cancellation of the deeds mentioned in the bill as clouds upon the title is only incidental, and designed to make the partition more ef
In view of these well-settled principles, it cannot be plausibly urged that either section 5231 or 5232 was intended to radically change, enlarge, and combine the distinct grounds of equity jurisdiction for quieting unassociated adverse claims and making partition between tenants in common, and thereby to overthrow the settled maxims and policies of chancery procedure, and .practically abolish the action of ejectment whenever there are joint claimants of property in the hostile possession of another.
The precise question we are considering, the right of a joint owner to seek in one and the same proceeding a partition as against his recognized cotenants, and also a quieting of his title against outside parties claiming adversely to him and his cotenants without any title or interest in common with them, has been determined adversely to appellant in the case of Bullock v. Knox, 96 Ala. 195, 11 South. 339, where such a joinder of unrelated matters and parties is held to render the bill multifarious, and subject to demurrer on that ground. This case is cited with approval to an analogous proposition in Merritt v. Alabama Pyrites Co., 145 Ala. 262, 40 South. 1028.
We hold that section 5232 of the Code does not change nor affect the principles declared in- Bullock v. Knox; and on the authority of that case, as well as by force of the principles above set forth, we hold that the bill here exhibited is multifarious, • and that ■ the demurrer was properly sustained as to this ground.
It is unnecessary to notice other grounds of demurrer, and the decree of the chancellor must be affirmed.
Affirmed.