108 Ala. 605 | Ala. | 1895
Petition for sale of land for division among tenants in common, alleging the statutory jurisdictional facts, and showing petitioner and respondent, Kate Monfee, to be tenants in common of the land, in equal interests. Before the petition was filed, respondent, Charles Hillens, had asserted an adverse claim to, and possession of the land, but at the suit of petitioner, in an action of ejectment against Hillens, in the proper law court, she recovered of him possession of an undivided one-half interest. These facts are alleged in the petition, and Hillens, by reason of them, is brought in as a party defendant. Hillens and Kate Monfee jointly defend, and by plea or answer set up adverse claims to the land and rely upon the provision of the statute that, No division or partition can be made under this article, when an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners, or of the judge of probate.” — Code, § 8251. We will dispose of the claim of Hillens further on. The adverse claim set up by Kate Monl'ee is that her interest in the land is an undivided two-thirds, in remainder or reversion, dependent upon a life estate in Hillens, and not an undivided half interest, in possession, as alleged in the petition. This defense concedes that petitioner and respondent, Kate, are tenants in common — the difference between them being as to the quantum of their respective interests. Equality of interests is not essential to the jurisdiction of the Probate Court to decree a sale for division; but it is claimed that the fact that defendant, Kate, claims a greater interest than that conceded to her by the petition, implies, if made in good faith, the assertion of an adverse claim within the meaning of the statute.
The issue thus presented leads us, seriously, to inquire whether or not the provisions of said section 3251 of the Code, are legally applicable to petitions, under the statute, for the sale of lands of tenants in common, for distribution — whether or not they apply alone to proceedings for partition of lands. In the years 1803 and
This continued to be the law until the adoption of the Code of 1852, when, by that Code, some material changes were made in it. The remedy was confined to lands held by joint tenants or tenants in common, in fee ; the parties interested therein all being of full age ; and the application was required to be made in writing, to the judge of probate of the county in which the lands were situated. Such are the provisions of section 2677 of the Code of 1852, and it is important to bear this in mind, in connection with what will be said hereafter, touching that section. Section 2678, required that the application set forth the names of all the persons interested in the land, and their residence, a full and accurate description of the land to be divided, the interest of each person in the land, and the number of shares into which it was to be divided. The subsequent sections to 2685, provided for the appointment of commissioners to make partition ; how they should proceed and make return, &c. Section 2685, declared the effect of the partition as to the vesting of title, in the several owners, to the shares allotted to them respectively; then, after other minor provisions, section 2690 was inserted, as follows : “No division or allotment can be made under this chapter'where an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners, or judge of probate.” On February 15th, 1854, said section 2677 was amended so as to apply to the interests of minors as well as adults. — Acts 1853-4, p. 72.
■ Up to this period, no statute had been enacted pro?
It is thus made apparent, that, while the 1st section begins with the words, that section 2677 of the Code, &c., be amended, the act, in effect, was not, properly speaking, an amendment of that section. The provisions of the new act were clearly not intended to be •added to and made part of said section 2677, thereby bringing them in context with those sections of the Code following 2677. regulating the procedure and machinery for making partition of lands among joint owners, &c., but it was, in effect, anew general law upon a distinct subject, towit, the sale of property, real, personal or mixed for distribution among joint owners or tenants in common; and, realizing that the procedure prescribed by the Code for partition of lands could not all apply, the new act expressly provided, by sections
We are aware that in Johnson v. Ray, 67 Ala. 603,
Considering, in this connection, a similar question, raised in the case of Nathan Griel v. John Randolph, from the Montgomery city court, now before us on ap- ' plication for re-hearing, we reaffirm the opinion filed, in that cause, and hold that the provisions of section 3239 of the Code, which requires the application for partition to set forth the residence of the persons interested in the property, if known, does not apply to the petition for a sale of the property for distribution.
We must not, however, be understood as holding, that the statutory system for the sale of property for'distribution, as embodied in sections 3253 to 3259, inclusive, supra, does not require the petition for a sale to set forth a proper description of the property to be sold, and to make the joint tenants, or tenants in common, parties thereto, showing their respective interests in the prop
Recurring then, to the subject of adverse claims, as affecting the right of the court of probate to proceed, we hold that the mere assertion by one of an adverse claim or title, brought to the knowledge of the commissioners or judge of probate, even though made in good faith, does not deprive the probate court of its jurisdiction to render a decree of sale, nor stop the- execution of such a decree, when rendered. But, in laying down this rule, there is another principle — a principle of the common law — which must not be overlooked. It is never permissible to suffer a judicial proceeding, seeking another and different recovery or relief, to be made a substitute for the action of ejectment. Thus, in a bill to foreclose a mortgage, for instance, a third party holding and claiming the .land adversely to the mortgagor and mortgagee, cannot properly be brought in to litigate his claim with them. — Dial v. Reynolds, 96 U. S. 340; Peters v. Bowman, 98 U. S. 56. An action for use and occupation cannot be used as a remedy to try the defendant’s asserted claim of title to the land; so that, if it appears the defendant was in the adverse possession of the land, during the time of the- use, the action will
The defendant, Kate Monfee, was not competent to testify that the deceased brother of herself and petitioner, who, in life, owned a one-third interest in the land, conveyed that interest to Hillens for life, with remainder in fee to herself, the alleged deed of conveyance being lost. Petitioner’s claim is that she and her sister, the defendant, Kate, inherited the one-third interest of the deceased brother, and the latter cannot impair that claim by testifying to transactions had by her with the deceased. — Key v. Jones, 52 Ala. 238 ; Boykin v. Smith, 65 Ala. 294 ; Goodlet v. Kelly, 74 Ala. 213 ; Bibb v. Hunter, 79 Ala. 351 ; Miller v. Cannon, 84 Ala. 59 ; Hodges v. Denny, 86 Ala. 226 ; Dolan v. Dolan, 89 Ala. 256. Pretending no ouster of petitioner, by herself, she shows no such adverse claim as deprives the probate court of its jurisdiction.
Affirmed.