60 So. 828 | Ala. | 1913
Under the terms of the will of Mrs. Allen, her son, David C. Allen, took a life estate to an undivided one-eighth interest in the land, with a remainder to his children who should survive him; and a court of equity has jurisdiction to partition the land in kind so as to give the said David C. Allen his part, and in which his children have a remainder, and to fasten their title to it and allot to the others, who have a fee, their seven-eighths interest jointly, if they so elect, and it can be so partitioned equitably. “Two or more tenants in common may unite in a bill against another cotenant, and may jointly elect to consider their several moieties as one moiety, and to have it set apart
The common-law rule as to partition has been considerably enlarged and extended by our statute, and we have many authorities holding that, when the partition is sought by one having the right to compel same, all interests can be brought in, whether in praesenti. or reversion. Of course, a reversioner with no right of posession, or to the present use and enjoyment, cannot maintain a bill as against those who are entitled to the present and entire use and enjoyment of the land. “On the other hand, we find the general rule to be, as laid down by courts and text-writers, That a remainderman or reversioner’ may be made party defendant in an action for partition.”—Fies v. Rosser, 162 Ala. 504, 50 South. 287, 136 Am. St. Rep. 57; Gayle v. Johnson, 80 Ala. 395; McQueen v. Turner, 91 Ala. 273, 8 South. 863; Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53. The bill in this case is filed by those who have a present estate in the lands and the present possession and right of enjoyment, against their cotenant, D. C. Allen, and his children, who have a remainder in his interest.
Whether the children of I). C. Allen have a vested remainder or a contingent one, dependent upon surviving their father, and that only the survivor will take, under the influence of Smaw v. Young, 109 Ala. 528, 20 South. 370, is a. question not necessary to now decide. The right to proceed in equity against contingent remaindermen for partition in kind is discussed and sanctioned, independent of the New York statute, in the cases of Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec.
Finding no error in the decree of the city court, the same is affirmed.
Affirmed.
