94 So. 90 | Ala. | 1922
This court has repeatedly held that a party who seeks a sale of land for partition must be entitled to possession or the immediate use of the proceeds, and that a reversioner cannot maintain a bill for partition against one holding an outstanding life estate in the entire property and who is entitled to the present use and enjoyment of the land, since the right to partition land depends upon actual or constructive possession of the land and the immediate right to participate in the proceeds of a sale for such purpose. Shannon v. Ogletree,
The bill, however, does not conform to the proof, as it sets out, as the statute requires, the share or interest of each owner, that is, that they own a one-sixth interest each in the reversion while Charles York owns the entire estate left to the widow, that is, for life or during widowhood. The will does not make the wife and children joint owners, as it expressly gives the wife during her life or widowhood all of the testator's property, and, while there is a subsequent expression indicating an intention that the property should go to the use and benefit of his wife and children, this did not confine the wife's interest to only a joint one with the children, as there was a further provision directing an equal division among the children after the death of the wife. On the other hand, if the wife took jointly with the children during her life or widowhood, then Charles York would not have an equal one-sixth interest, as averred in the bill, but would have one-sixth interest in the reversion, and under the deed from his mother would have a one-seventh interest in the estate during her life or widowhood together with his own one-seventh, making two-sevenths in the present estate and one-sixth interest in the reversion. We think, however, under the will and the deed from his mother, Charles York owns the life estate of his mother in all of the land, subject to be defeated by her marriage before her death, and that each of the children named owns an *276 undivided one-sixth interest in the reversion. This cause must be reversed in order that the bill may be amended so as to conform to the proof.
We also suggest that the description of the land should be more definite. It may be that as to some of the subdivisions it is sufficiently certain by discarding the exception for uncertainty, but "the southwest part of the northeast quarter of the southwest quarter, the southwest part of the southwest quarter of northwest quarter," in section 34, is indefinite and uncertain, and is not aided by an averment sufficient to make it so certain as to inform any one what land is sought to be sold. Welden v. Brown,
The decree of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
