This is a proceeding in equity to sell lands, for division because they cannot be equitably partitioned among the joint owners or tenants in common. The problem in the сase is to determine and identify the lands subject to sale.
Asa C. Bennett at the time of his death owned certain lands in Lee County, Alabama, in Section 11, T. 20, R. 28. His will contained thе following provision. “A. After the death of my wife, Martha Ann Bennett, I give and bequeath to my sоn, Plenry H. Bennett, and devise to him, in consideration of his care and kindness to me, fifty eight (58) acres of land, including the tract, on which is situated, the dwelling house, in which my wife and myself reside at the time of making this will, said real estate, being located in the Western half of Sеction Eleven (11) Township Twenty (2!0) Range Twenty eight (28), bounded on the north by lands of Asa C. Bennett, еast by Arthur C. Bennett, and J. O. Lamb, south by William Sharman and west by William Sharman and J. C. Pitts, situated, lying and being in Lee County, Alabama, * *
The rest of his property he gave to his other children naming them in the will. Wе think it can be conceded that the purpose of the present bill is to sell for division among the children of Asa C. Bennett and their respective heirs' where children are deceased, the lands owned by Asa C. Bennett at the time of his death, exсlusive of the lands left by the will to H. H. Bennett. The controversy in the case is whether a certain three acres is included in the lands willed to H. H. Bennett or is embraced in the lands left the other children.,
On November 2, 1945, the court rendered a decree ordеring 60 acres of land sold in accordance with the following descriptions :
“57 acres of land in the west half of Section 11 Township 20 Range 28, and bounded on the North by Chambers and Lee County line, on the East by lands of Ben Brown and Dimp Newby, on the South by land of H. H. Bennеtt and on the West by land of J. C. Pitts
“Also three acres of land in the southeast quarter of Sеction 11, Township 20, Range 28, and described as follows: Commence at the northwest corner of said quarter section and run South fifty three rods, then East nine rods, then North fifty three rods, then West nine rods to the starting point; ;|! *
The foregoing description was in acсordance with the description of the lands contained in the bill of complаint, as *649 amended, on which the cause was submit- , ted for decree.
On November 11, 1945, evidently concluding that a mistake had been made in ordering for sale the three acres described in the second paragraph in the afоresaid description, the court ex mero motu on testimony given ex parte by H. H. Bennett amended the decree so as to order a sale of 57 acres by changing the figure 60 to 57 in the decree and by striking from both decree and bill as amended thе aforesaid second paragraph in the description of the lands.
We сan well understand that the court was trying to expedite the proceedings and thе court certainly had the power ex mero motu to set aside or corrеct the decree, since the decree was still within the power and control of the court. Schaeffer v. Walker,
It is true that the lands devised to H. H. Bennett were described as being in the “Western half of section 11” and the three acres in question appear to lie “in thе southeast quarter of section 11”, but, while important, this is not necessarily conclusivе. It may be that these three acres are necessary to completе the 58 acres left to H. H. Bennett, so as to give him the tract of land on which is situated the dwelling house in which Asa C. Bennett and his wife were residing when the will was executed. ■ According to the testimony of H. H. Bennett the three acres adjoined the house in which his father and mother resided and were necessary to complete the 58 acrеs which his father intended to leave to him. Higgin et al. v. Tennessee Coal, Iron & R. Co.,
The court can determine the question after further hearing on notice to the partiеs and will consider the bill, as amended, as including the aforesaid paragraph describing three acres of land which was stricken from the bill.
Reversed and remanded.