54 So. 105 | Ala. | 1911
Article 1 of chapter 121 of the Code of 1907 provides for partition and sale of. property, real and personal, held by joint owners or tenants in common, and gives the probate and chancery courts jurisdiction to effectuate same. Section 5221 provides, hoivever, that the remedy therein given is not exclusive, and does not prevent a resort to any lawful method of obtaining partition of lands.
The complainant is the owner of an undivided one-third interest in all the timber on the land, with the limitation of seven years given him, within which to
In the case of Steedman v. Weeks, supra, the court did authorize a partition of the timber as distinguished from the land, but there the owner of the land had in effect severed the entire timber title from the land. He owned all of the land, and sold an undivided half interest in the timber to another, and the court held that he coqld compel his vendee to a partition of the timber. Here the facts are different, as none of the owners, except the complainant’s grantor, conveyed any timber interest, and they did not participate in a severance of their timber interest from the land. Nor do we question the idea, when the owner or owners of the entire estate sever timber or mineral, by conveying them or treating them as estates separable from the land, that the timber or mineral may not be partitioned without a partition of the land; but in cases like the one at bar, where only one of several owners has conveyed his timber interest in the land, this does not op
The bill was first for a sale of the land, because it could not he equitably divided, and was amended so as to ask primarily for partition in kind, but sought a sale in the alternative, in case it could not be partitioned. This was probably admissible before the Code of 1907.—Berry v. Tenn Co., 134 Ala. 618, 33 South. 8; Claude v. Handy, 83 Md. 225, 34 Atl. 532. If, however, there should be any doubt on the subject, the same is removed by section 3095 of the Code of 1907.
It is not clear whether the amendment to the bill was considered when passing on the demurrer incorporated in the answer, yet the demurrer purports to be directed at the bill as amended, and, if it was so directed, the chancery court erred in sustaining same. If, on the other hand, the bill had not in fact been amended when said demurrer was considered, the complainant should have been permitted to amend, after the ruling on the demurrers, and which he attempted to do. While the record presents some confusion, the amended bill was not subject to the respondents’ demurrer, and, if the amendment was not in when the demurrer was considered, it should have been allowed after the ruling on the demurrer. Moreover, the bill before and after amendment showed that the complainant did have such an interest in the land as would authorize him to seek a partition of the land or a sale thereof in case it could not be equitably divided.
The decree of the chancery court is reversed, and the cause remanded.
Reversed, and. remanded.