41 So. 819 | Ala. | 1906
Lead Opinion
This was a petition for the sale of certain property for partition among joint owners. The petition as amended alleges that the petitioner and the defendants own a certain tract of land “subject to a certain lease,” etc., and prays that said real estate be sold for partition.
Much of the evidence and also of the argument is devoted to the question as to whether a partition of the land could be made; it being contended that, on account of the coal and expense of ascertaining how much coal lies under the land, such a subdivision of it would be impossible. The averments and the evidence show that the entire tract of land had been leased for 20 years to a party who has the right to possession of the surface, with the right to dig all the coal, and he is to pay there
The authorities declare that the right of partition is absolute, whatever may he the inconvenience caused thereby. But, although, courts of equity by their extensive powers could grant this right to the citizen in almost every case, yet in order to relieve the inequities and inconvenience which sometimes attend an actual partition, it is customary now to provide by the statute for the sale in lieu of the partition in certain cases. — 21 Am. & Eng. Ency. of Law, § 1197; 3 Pom. Eq. Jur. § 1390. Our own statute provides that “property, real, personal or mixed held by joint owners or tenants in common * * * may be decreed to he sold * * * when the same cannot be equitably divided or partitioned among them.” The jurisdiction was at first given to the probate court alone, hut was afterwards extended to the chancery court, and, when our decisions of a later date use the expression that the right of partition is absolute, they must mean that the right of partition, either, by actual division or by sale, is absolute; otherwise, there never could he a sale. The statutes indicate and the courts declare that partition is preferred, and the sale is allowed only in the cases provided for by statute. Thus, in the case in which a sale was granted for partition, this court refers to the right as absolute. — Mylin v. King, 139 Ala. 319, 326, 327, 35 South. 998. The court in another case states that two modes of partition are provided for by statute; that is, “actual partition, or partition by sale of the property and division of the proceeds.” — McQueen v. Turner, 91
Did the fact that the property had been leased, as described, operate as an obstacle in the way of the right of one of the joint owners to a partition either by actual partition or by sale? It is claimed that this is analagous to a reversion, and the case of Wilkinson v. Stuart, 74 Ala. 198, is cited to show that there can be no partition of a reversionary interest. In that case, a petition had been filed in the probate court for sale for partition, and a bill was filed in the chancery court for partition (the chancery court, at the time, not having any jurisdiction to sell for partition). It whs admitted that the probate court, having acquired jurisdiction, must continue in its exercise unless facts or circumstances of special equitable cognizance are shoum to exist which render inadequate the statutory jurisdiction. Page 203. Those special circumstances were shown, and the chancery court took jurisdiction for strict partition. In that case the court of equity was acting upon its original jurisdiction simply do partition, and according to the law it seems that partition could not be had of a reversion under the general jurisdiction of the court. — 1 Washburn on Real Property (3d Ed.) 584, 428. So the court did not pass upon the right of sale for partition under the statute. In the case of West v. West, 90 Ala. 458, 7 South. 830, a part of the lands held by the parties was subject to a dowser interest, and the petition for partition omitted that part; the only question decided being that the rule against partition by parcel did not apply to that case, though it does seem to be taken for granted that a partition (not a sale) could not be had of the reversion. —West v. West, supra.
Our statutes seem to intend that all interests in land shall be subject to partition, either by actual allotment or by sale. However that may be, it seems clear that the existence of a lease is not a bar to a partition of the residue.. — 21 Am. & Eng. Ency. Law (2d Ed.) 1201. Under a statute similar to ours, the Supreme Court of Nebras
The question then arises whether, in the case, at bar, the petitioner is entitled to a sale of the property, or whether the sale should be refused on the ground that the property can be equitably partitioned among the parties in interest. And at this point it is claimed by the appellee that the meaning of the. provision in the statute is that, if a court of equity with its enlarged powers of procedure could effect an equitable partition, then the probate court must refuse the sale. In accordance with the previous decisions of this court, we hold that the two jurisdictions are distinct, that each court proceeds according to its own powers and mode of proceeding, and that the probate court can consider only it own powers in determining whether the property (‘an be equitably divided. If it were otherwise, the probate court might undertake to declare that a court of equity could make' a partition, refuse to grant the order of sale, and when the. matter reached the chancery court that court might
On the question, as to whether this land could be equitably divided there is a conflict in the testimony; but, though the witnesses were directing their attention to the matter of distributing the interest in the coal being mined by the lessee, which has been eliminated by Avhat has been said, yet there Avas a preponderance of the testimony to the effect that the land could be equitably partitioned. IToAvever that may he, the testimony of petitioner’s Avitnesses shows that the most valuable seam would be Avorked out in 12 or 18 months, and that very little coal that is Avorkable has been found beyond that, and that lands adjoining have a market value. Of course, no one can tell exactly avIiether any more coal will be discovered during the 10 years which the lease has to run, or whether better methods may he devised for Avorlcing Avhich might render seams Avorkáble Avhich are uoav Avorthless; but it is not necessary to enter into these speculations. It appears sufficiently clear at the present time that the interest of the parties in these lands subject to the right of the; lessees has a market value and could be partitioned Avith as much accuracy as usually attends the partition of lands, if the interest of the parties was such as to authorize it. Bo that on that ground there Avould be no ground for the order of sale.
The most serious ground which presents itself here is that some of the parties oavu one-eighth and others own one-tAvelfth interest each, AAdiile under our statute and decisions a probate court cannot partition except in the Avay pointed out by the statute;, Avhich is by lot, requiring the interest to he equal. — Code 1896, § 3169; Terrell v. Cunningham, 70 Ala. 100, 106; Ward v. Cor
The. objection to the introduction of oral testimony bv the defendants was properly overruled. Section 3181 of the Code of 1896 requires that the evidence in support of the application must be taken as in chancery cases, but this does not refer to the testimony introduced by the defendant. — Garrett v. Bruner, 59 Ala. 513; Garner v. Tony, 107 Ala. 352, 18 South. 161.
The decree of the probate court is reversed and annulled, and the cause is remanded to the probate court, with the direction that a decree be there entered in this cause providing for the sale according to the statute of the interest of the parties in the lands described, subject to the lease held by the Bessemer Land & .Improvement Company and H. F. DeBardelaben, which lease is not to be in any manner disturbed or affected by this decree; the. proceeds of said sale, to be distributed among the parties in interest in accordance with the statute.
Beversed and remanded.
Rehearing
On Behearing.
The jurisdiction of the court, in the opinion, is rested upon the fact that the property cannot
The fact of equitable, division of the property in specie» cannot be» de»te»rmined upon the efficiency or inefficic»ncy of the mode, of allotment provided by section 3169 of the» Code», but must be ehitermined upon the answc»r to the», question whe»,flier it can be equitably dividend in kind by the probate or chancery court. If it can be so (‘.([uitably partitioned in either jurisdiction, and the remedy by allotnmnt is ineffectual to that end, in the probate cemrt, the chance*ry e*ourt. can and does afford the remedy, and the party desiring the» division shoulel proceed in that court. On the othe»r lian el, if it cannot be (equitably partitioned in kind, then edther jurisdiction may be resorted to for a sale. At all events, whether a partition in kind or for sale, is sought in the probate court, the decree on final hearing is conclusive until reversed on appe»al, e»xeluding the-jurisdiction of the other tribunal unless there is,some special equitable ground for the interposition of equity. — Morrison v. Morrison, 105 Ala. 637, 17 South. 109. Roth tribunals, it is nee»dless to say, derive tlmir jurisdiction to sell property for partition under the statute's, and, while concurrent-, the tribunal first acquiring jurisdiction is exclusive. — Marshall v. Marshall, 86 Ala. 383, 5 South. 475. There therefore need be felt no such apprehension as expressed in the opinion of Justice Simpson.
The decree appealed from is affirmed.
