Henderson v. Stinson, 92 So. 453

Henderson v. Stinson

92 So. 453 | Ala. | 1922

Appellee Stinson filed the original bill in this cause praying that a sale of 480 acres of land be decreed in lieu of partition, and that appellant Henderson be brought to account for rents, profits, and waste. Defendant answered denying complainant's interest in the land and claiming ownership of the entire fee in himself. Further answering, defendant pleaded the statute of limitation of 10 years, the statute (sic) of 20 years, and laches. By amendments, Sarah Stinson, wife of original complainant, and others, were brought in on an averment that they had interests in the land, and the interests of the parties were defined, and, further, complainant undertook to state a cause of estoppel against the right claimed by defendant in virtue of laches and the statutes of limitation. The merits of this alleged estoppel, added in the bill by way of replication to defendant's answer, did not affect the equity of the bill, and need not now be discussed. In her answer Mrs. Stinson denied Henderson's ownership as averred in his answer, stated a new definition of the respective interests of all parties, and prayed relief of the same character as that sought by the original bill. Henderson's demurrers to the original bill as amended and to Mrs. Stinson's cross-bill were overruled, and the decrees to that effect are assigned for error. We will state our conclusions in respect of the grounds of demurrer treated in the brief.

In the first place, it is objected that defendant is not answerable for rents in the absence of an express promise to pay. The rents and profits for which complainant seeks an accounting were received by defendant *367 from third parties, and for them he must account. Wheat v. Wheat, 190 Ala. 461, 67 So. 417; McCaw v. Barker, 115 Ala. 543,22 So. 131. So in respect of waste. Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50. Nor is it necessary that the bill contain an averment of complication or a necessity for discovery. Having acquired jurisdiction for partition, the court will proceed to a settlement of all related matters. Marshall v. Marshall, 86 Ala. 383, 5 So. 475.

The original bill sufficiently showed the parties and their interests. McQueen v. Turner, 91 Ala. 273, 8 So. 863. Nor was there any tenable objection to the amendment on the ground that it set up matters subsequent to the filing of the bill. Ala. Warehouse Co. v. Jones, 62 Ala. 550; Freeman v. Brown,96 Ala. 301, 11 So. 249.

The fact that the cross-bill avers a quantum of interest in the respective parties different from that averred in the original bill affords no ground of demurrer to the cross-bill. This state of the pleading merely raised an issue of fact to be determined on the evidence.

In the absence of statutory provision, the general rule is that partition cannot be awarded when the entire common estate is in reversion or remainder. Wilkinson v. Stuart, 74 Ala. 198; McQueen v. Turner, supra. Here the complainant is entitled to present possession of his interest, and for that reason, on the averments of the bill, is entitled to partition. The leading authorities are cited in Wheat v. Wheat, supra.

We find no error in the decrees.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.