69 So. 928 | Ala. | 1915
Thomas W. Clark died seised of a plantation in Madison county. He left surviving him a widow and several children and grandchildren who were his heirs and distributees. His widow took a life estate in his lands, and his children and grandchildren took the remainder therein. Pending the life estate the widow entered into a lease contract with appellants, by which she leased the plantation, the subject-matter of this suit, to appellee for the term of five years beginning November 13, 1913. The rent was payable annually, each payment being secured by a promissory note for $275.99,. due on November 1st, the series of five notes maturing, the first, on November 13, 1914, and the rest successively. The appellants placed about $400 worth of improvements on the place.
The life tenant died during the year 1914, thus terminating the life estate. S'ome of the heirs, as claimed by the appellants, either joined in this lease or ratified it thereafter. A part of the heirs or remaindermen, however, did not join in the lease with the life tenant, and never ratified it, and these, of course, were not bound by the contract.
On the 14th day of July, 1914, two of the heirs and remaindermen, Jim Clark and Alice Dalton, filed in the chancery court their bill against the other heirs and remaindermen to sell the lands in question for partition or distribution among the tenants in common. A decree was thereafter rendered, ordering the lands sold for the purpose of distribution. The lands were sold, in pursuance of such decree, on the 26th day of December, 1914, and were purchased by the appellee. The ap
It is contended by appellee that one Smith, who made the sale, publicly announced, as a part of the terms of the sale, that the purchaser would be entitled to the rent of the land for the year 1914, and would get the possession on the 1st day of January, 1915. Appel lants therefore declined to surrender possession to the purchaser, and he applied to the register of the chancery court for a writ of assistance to place him in possession of the lands purchased by him at the sale. The register, without notice to the appellants, issued the writ, and it Aims placed in the hands of the sheriff, who executed it by placing appellee in possession. Appellants then filed in the chancery court their petition, seeking to have the writ of assistance quashed and held for naught, and praying a Avrit of restitution restoring to them the possession of the lands. The chancellor, on the hearing of this motion, denied the relief sought, and dismissed the application; and from this order or decree, appellants prosecute this appeal.
There is no question that some of the above rules appear to have been violated in this case, and for that reason it would seem, at first sight, that the writ ought not to have been issued here; but, after a careful consideration of this record, we have reached the conclusion that appellants have “no legal right” to hold the possession of these lands against appellee.' If appellants’ claim rests alone upon their written lease from the life, tenant, it conclusively appears that the life tenant is dead, and that the life estate, together with the appellants’ right to the possession, is terminated in favor of appellee. If appellants rely upon their right to possession by virtue of a lease from the remaindermen,' then it conclusively appears that they have and claim no right from all the remaindermen, but from only a part thereof. If it be conceded that they acquired a right to the possession from a part of the remaindermen, then it necessarily follows that they must have acquired this right subject to the prior and paramount right of the other remainder-men to have the lands held in common partitioned or sold for distribution among all the'tenants in common,
The right of one tenant in common — and, of course, the right of his tenant or agent, and all persons claiming through him alone, by lease, or curtesy, etc. — is subordinate to the prior and paramount right of his tenants in common to partition, or to sell for distribution, their common property; and if the common property is so sold for such purpose, the purchaser thereof takes the property freed from the claims of any of the several tenants in common, which claims are subservient to the prior, paramount, and common right to sell for distribution. See McLeod v. McLeod, 169 Ala. 654, 53 South. 834, and Holley v. Glover, 36 S. C. 404, 15 S. E. 605, 16 L. R. A. 776, 31 Am. St. Rep. 883, where this prior, paramount, and common right of sale, and its effect upon subservient rights and titles as to the common property, is discussed.
If appellants claimed title and right to possession from all the remaindermen and tenants in common, and their rights or possession had attached before the filing of the bill for sale for distribution, they not having been parties to such proceedings, then they could not be ousted or dispossessed by a purchaser at such sale as was had in this case. But appellants show no such claim or right. At most and best, they claim to have acquired their rights from only a part of the tenants in common; and their landlords could not thus defeat the prior, paramount, and common right of the others to have the common property sold for distribution. And the purchaser at the sale for distribution, in a case like this, of course, acquires the right to possession as against any of the tenants in common who are then in possession,
For this reason, the decree of the chancellor dismissing appellants’ petition to dissolve the writ of assistance and to issue the writ of restitution must be affirmed.
Affirmed.