| Ala. | Nov 15, 1895
The original bill was filed by the appellee, William Deegan, to obtain a decree of the court of chancery, for the sale of certain real estate situate in the city of Mobile, held by him and one Charles Farley, deceased, as tenants in common, to effect a partition between them. Farley had died, and by his will had devised his undivided half part or interest in the real estate, to the appellant, Annie Kelly, for life, and upon her death, “remainder over in fee, to Right Reverend Jeremiah O’Sullivan, and his successors in the Bishopric of the Diocese of Mobile, in trust for the use and benefit of the Catholic, Orphan Asylum in Mobile.” The devisees are made parties defendant to the bill, and on a final hearing on pleadings and proof, a sale of the real estate was decreed. The sale was made in pursuance of the decree; the appellee, Deegan, became the purchaser, and paid into court one-lialf of the purchase-money, $10,500, and one-half of the costs. There were no exceptions to the report of the sale, and it was confirmed. The decree of confirmation contains this paragraph : “It is further .ordered and decreed that the register by proper deed convey the lands in said report set forth to the said William Deegan, the purchaser at such sale. Out of the proceeds of such sale now in his hands the register will retain the costs of this suit. The balance he will pay over to Annie Kelly on her giving bond with two good and sufficient sureties in-the sum of such balance, to be approved by the register, payable to the Right Reverend Jeremiah O’Sullivan, and his successors in the bishopric of the diocese of-Mobile, in trust, for the use and benefit of the Catholic Orphan Asylum in the city of Mobile, on the death of the said Annie Kelly. The said Annie Kelly shall have twenty days to make such bond. On her failure to do so, in such time, the register will lend the same out on good real "estate as security so as to net as nearly as possible eight per .cent, per annum payable annually. The register will report his proceedings under this decree to the next term of this court.” Thereafter, .the appellant filed her petition, alleging that she was entitled to have severed, and set apart to her absolutely, the value of the life estate, of and from the proceeds of
The two distinct decrees — the decree confirming the sale of the real estate, and the subsequent decree of dis-. missal of the petition of the appellant — cannot be joined and by a single appeal introduced into this court for revision. Either decree is final, and will support an appeal ; but the parties to the one, would not be proper parties to the other. Deegan, the party obtaining the decree of sale and the purchaser, would be an indispensable party to the appeal from the decree of confirmation ; but would not be a proper party to the appeal from the decree of dismissal of tbe petition, for he is not a party to the petition, and has no right or interest involved or affected by the decree. There has been no objection taken to the appeal; if an objection had been made, as matter of right, the certificate of appeal was amendable by the appellant, so as to present either decree, as its subject-matter, for revision. The necessities of the case require an early decision of the question presented by the petition of the appellant, and we will pro- ■ ceed to its determination, without regard to the irregularity of the appeal.
"While a court of equity had jurisdiction, concuri’ent with courts of law, to decree the partition of lands held by coparceners, joint tenants, and tenants in common, it was without jurisdiction to decree a sale of the lands, if the tenants, or either of them, were adults, and not consenting. — Deloney v. Walker, 9 Port. 497" court="Ala." date_filed="1839-06-15" href="https://app.midpage.ai/document/deloney-v-walker-6529565?utm_source=webapp" opinion_id="6529565">9 Port. 497. The statute, (Code, § 3262), now confers the jurisdiction, concurrent with that of the court of probate, “to divide or partition, or to sell for partition,” whether the tenants are adults or infants. The essential, controlling element of the jurisdiction is, that the lands “cannot be equitably divided or partitioned” among the tenants. — Code, § 3253. When this fact exists, a sale at the instance of either tenant is matter of right, as actual partition at common law was matter of right, without inquiring whether it is of benefit or injury to the other tenants. Freeman on Cotenancy & Partition, § 539. The decree of sale is obtained only by an adversary judicial pro
The sale and division of the proceeds of sale, dissolved the tenancy in common existing between Deegan and the devisees of Farley, as a partition of the lands between them would have dissolved it. But it worked no change in the relation of the devisees, nor in the nature or character of the estate devised to them. The share of the proceeds of sale allotted to them is the substitute for their share and interest in the land, passed to them as land, impressed with the same title by which the land was impressed. There could be as between them, no partition or division of these proceeds, as there could not have been, if there had been an actual partition of the land. The indispensable element of every compulsory partition, is a cotenancy. Whatever other relation may exist, if this relation does not exist, there is no right to partition. — Freeman on Cotenancy & Partition, §431. As between the tenant of the particular estate, whether the estate be for. years or for life, and the remainderman or reversioner, there is no tenancy in common, and partition between them cannot be compelled. Nichols v. Nichols, 28 Vt. 228" court="Vt." date_filed="1856-01-15" href="https://app.midpage.ai/document/nichols-v-nichols-6575795?utm_source=webapp" opinion_id="6575795">28 Vt. 228; s. c. 67 Am. Dec. 699;
Voluntarily, the tenant of the particular estate and the remainderman or reversioner may make sale of the lands, and in the absence of any special agreement between them, a court of equity will compel an apportionment of the purchase-money according to their respective interests. This is the doctrine, and the extent of the doctrine asserted in the authorities referred to by the counsel fo.r the appellant. — Foster v. Hilliard, 1 Story 73 ; Thompson v. Thompson, 107 Ala. 163" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/thompson-v-thompson-6516163?utm_source=webapp" opinion_id="6516163">107 Ala. 163. They lend no countenance to the proposition, which seems to underlie the argument in support of the petition, that a tenant of a particular estate may compel the remainderman or reversioner to a partition or division, by which a qualified, or limited, is converted into an absolute interest,.to his prejudice and in destruction of the intention of the donor. The donor intended that on the expiration of the life estate, the entire fee, and no lesser interest should pass to the remainderman, and this intention it is the duty of the courts to preserve and effectuate and not to defeat.
The tenant for life is entitled to the use of the money derived from the compulsory sale on partition with the cotenaut of the testator, as she would have been entitled to the use and enjoyment of the land, if on an actual partition land had been allotted. This is the extent of her equity and right, but while awarding it to her, the rights of the remainderman must be protected and preserved: Upon the rule settled in Mason v. Pate, 34 Ala. 379" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/mason-v-pates-6506514?utm_source=webapp" opinion_id="6506514">34 Ala. 379; Chaney v. Chaney, 38 Ala. 35, she should be permitted to receive the money upon the execution of a proper bond payable to the remainderman, with at least two good and sufficient sureties, and with condition that on her death, the money shall be restored to the remainderman, and with the further condition, that if at any time the court may deem a new or additional bond, or further security necessary, such bond or security will be given on the order of the court, or if not given, the money will be restored as the court may order. If the
The decree dismissing the petition of the appellant must be affirmed.