86 Ala. 383 | Ala. | 1888
The appeal is taken from a decree overruling a demurrer to a bill. Assuming the truth of its allegations, the facts are these: William B. Marshall died, intestate, in January, 1874, being at the time of his death a resident of Talbot county, Georgia. ' He left an estate in Georgia, and owned, at the time of death, a considerable quantity of land in Alabama, situated in several different counties. He left surviving him a widow and children and grand-children. During his life-time he made unequal advancements to his children. Letters of administration on his estate were granted to James E. Marshall, one of his sons, by the Court of Ordinary of Talbot county. This administration has been finally settled, and the administrator discharged. On the settlement, the assets, amounting to over thirteen thousand dollars, were distributed between the widow and the distributees who file this bill. James E. Marshall was also appointed administrator of the estate in Alabama, by the Probate Court of Butler county, in which some of the .'lands are located. His letters were afterwards revoked on the ground of non-residence, and another person was appointed administrator de bonis non, whose letters also were subsequently revoked; and no representative has been since appointed. In November, 1887, some of the heirs made application to the Probate Court of Butler county, for an order to sell, for partition, the lands situated in that county. After legal notice to the parties, the court, in January, 1888, made an order of sale, and appointed commissioners to make the sale. The present bill was filed April 4th, 1888, by appellees, for a partition of the lands among the heirs as tenants in common, and, as incidental and essential thereto, seeks to have the widow’s dower allotted, and a sale
1. In the absence of a statute, a court of equity has no power to effect a partition of lands between adult tenants in common, without their consent, by decreeing a sale, because the lands can not be equitably partitioned among them, or for any other reason. — Lyon v. Powell, 78 Ala. 357. The jurisdiction to order a sale of lands for partition among adults was conferred, prior to the enactment of the present statute, upon the Probate Court. By section 3262 of Code of 1886, concurrent jurisdiction with the Probate Court is conferred on the Chancery Court, “to divide or partition any property, real, personal or mixed, between joint owners or tenants in common.” Notwithstanding the Chancery Court had no authority to sell the lands of adults, the difficulty of making partition was no ground for refusing relief. When exact or fair division was impracticable on a bill for partition merely, the court could compensate for an inequality, by a pecuniary compensation charged on the land by way of rent or servitude; could direct an account of rents and profits received by one of the joint owners, and award compensation to a joint owner for improvements made by him, either by assigning to him that part of the land on which the improvements were located, or by setting off their value against the rents and profits. — Horton v. Sledge, 29 Ala. 198; Ormond v. Martin, 37 Ala. 598. The court, in such case, acted on the familiar principle, that having acquired jurisdiction of the subject-matter on a special and original ground of equity, it will employ its powers to adjust the equities between the parties, growing out of their ownership and relation to the property, and the connection of their interests with those of their co-tenants, and with the general' right or equity of the complainant.
2. It is insisted, however, that the jurisdiction of controversies, as to advancements, is conferred by the statutes on the Probate Court. This is true; but it does not follow necessarily, that the power of a court of equity to equalize advancements, when essential to complete relief and justice, is destroyed, when the court has taken jurisdiction of the case under some recognized head of original jurisdiction. Though the statutes confer on the Probate Court cognizance of administrations, and the settlement of estates, with power to adjudicate the rights and interests of heirs and distributees, they do not operate to oust the original jurisdiction
3. In Tindal v. Drake, 51 Ala. 574, a bill for partition of lands, also seeking the removal of a trustee, and an account of the rents and profits while they were in the possession of a purchaser from the trustee, was held not to be multifarious. The averments of the bill in this case show, that the interests of no defendant are entirely separate and distinct from those of the co-defendants. Their interests are in common, growing out of the common ownership of the lands, and their relation as heirs of a common ancestor to the subject-matter of the suit, and are connected with the general equity of complainants. The objection of multifariousness can not prevail. — Bolman v. Lohman, 74 Ala. 507; Lott v. Mobile Co., 79 Ala. 69.
4. The next ground of demurrer is based on the acquisition of jurisdiction by the Probate Court of Butler county, by the petition for an order to sell the lands in that county for partition, and its exercise until an order of sale granted. The bill shows that there were lands situated in several counties. The Probate Court of Butler county acquired jurisdiction only as to the lands in that county. If conceded that, under the circumstances of the case, the Chancery Court should not interfere with the continued exercise of the jurisdiction, it would not operate to dismiss the entire bill. The demurrer goes to the whole bill, and for this reason, if for no other, was properly overruled. — Burke v. Roper, 79 Ala. 138. The jurisdiction of the Probate and the Chancery Courts being concurrent, the general rule is, that if the Probate Court first obtained jurisdiction, it, eo instanli, becomes exclusive. In such case, the Chancery Court
5. The bill alleges that the lands constitute the entire estate in Alabama; that the estate in Georgia has been fully administered, settled and distributed, and that no debts are due by decedent. On the death of the ancestor, the title to the lands descended immediately to his heirs, who have the right of immediate possession, subject only to the statutory authority of the personal representative to rent them, and to obtain a judicial order of sale for the payment of debts, or for distribution. As there are no debts of the estate, and as the bill seeks partition, and incidentally an adjustment of the advancements, in which an administrator has no interest, and there is no occasion the estate should be represented, the personal representative of the deceased ancestor is not a necessary party. — Tindal v. Drake, supra.
6. The statutes defining the rights and liabilities of husband and wife abrogate his trusteeship, and divest him of all right, interest and title to the property, growing out of his relation of husband, and deprive him of authority to control and manage the same, except by way of restraint upon its alienation. — Rooney v. Michael, 84 Ala. 585. Having no interest and no control of the statutory separate estate of his wife, the husband is not a necessary party to a bill relating to such separate estate. The spirit and policy of the statute are, that the wife must sue and be sued alone in all cases, either at law or in equity, involving her statutory separate estate. Code, 1886, § 2347; Ramage v. Towles, 85 Ala. 588. The cause of demurrer, based on the misjoinder of the husbands of the female heirs, was well taken.
The decree of the chancellor is reversed, so far as it overrules the last mentioned cause of demurrer, and affirmed in all other respects.
Affirmed and reversed.
