16 Ala. 302 | Ala. | 1849
The first assignment of error is, that the land should have been divided into seven instead of six shares, in consequence of an agreement under seal, by which Need-ham Bryant and General J. Bryant, two of the heirs, and William F. Stearns and Joel Mayberry, who had intermarried Avith tAvo of the daughters of William Bryant, deceased, trans-fered to Bodicia, the widow, 'one seventh part of all the real and personal estate of her deceased husband. There are six heirs, but the agreement is signed by two only, and the husbands of two of the females, who are entitled as heirs and dis-tributees to participate in the division of the estate. It is very clear that this agreement can operate only on the shares or interest of the two heirs that have signed it, and the other four are entitled each to one sixth part. The agreement, however, may be binding personally on the husbands of the two daughters who are parties to it — yet it cannot have the effect of vesting in the widoAv any title to the land, to the prejudice of the rights and interests of their Avives, who are entitled by descent each to a sixth part, but Avho have not by any aét of theirs conveyed any share of their interest. The agreement, then, can only operate on the interest of two of the heirs, if it can operate to give her title to any portion. The four heirs
The same answer must be given to the third assignment of error, which is, that the return does not show that the survey was made in the presence of the commissioners. It would be difficult to perceive how they could make the partition, having a due regard to the quantity and quality of each share, unless they were present and directed the survey. But the return need not state positively that they Avere present, directing the survey; this Avill be presumed, until the contrary is shown by proof.
The fourth error assigned is, that the time, place and manner of the allotment are not certified as directed by the statute. We have examined the return, and cannot pronounce it defective. The notice required of the time and place of the allotment Avas given, and the allotment was made by ballot in the manner prescribed by the statute, and the Avhole is certified by the commissioners. We can perceive no defect in the manner in Avhich the share of each Avas allotted or set apart.
Let the writ of error be dismissed.