Marshall v. Marshall, 86 Ala. 383

CLOPTON, J.

Thе 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 diffеrent 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, whosе 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 salе, 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 of enough of the lands to pay the taxes due thereon, ‍‌​‌​​​‌​‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‌​‍and to adjust and еqualize the advancements.

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 pаrtition 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 Probatе 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 Chancеry 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, thе 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 thе 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 рroperty, 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 contrоversies, 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 аnd distributees, they do not operate to oust the original jurisdiction of courts of equity. When a court of equity takes jurisdiction of an administration, and it becomes necessary to distribute the assets, real and personal, among those entitled, it may decree an account of advancements for the purpose of complete and equal distribution. — Key v. Jones, 52 Ala. 238. On the same principle, when the court takes jurisdiction for partition of lands, which the tenants in common acquired by inheritance from a common ancestor, who has made аdvancements to some of them; ‍‌​‌​​​‌​‌​‌​‌‌‌‌​‌​‌‌​​‌​​‌‌​‌​‌‌​‌‌‌‌​‌‌​​​​‌‌​‍having the power to decree a sale for the purpose of partition, it may, before decreeing partition, require the tenаnts in common to bring in their advancements, and take them as portions of their shares. — Pigg v. Carroll, 89 Ill. 205: Freeman on Co-ten. & Par., §§ 505, 506. The general equity of the bill rests on sound principle.

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 avermеnts 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 сomplainants. 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 оrder 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 еxercise 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 Probаte 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 should not interfere with its continued exercise, unless the circumstances аre such as to render the power of the Probate Court inadequate to do complete justice. The Probate Court has no power to compensate for inеqualities in the partition; nor to take an account of rents: nor to provide for relieving the lands of incumbrances; nor to adjust and equalize the advancements among the tenants in common, when the lands descended from a common ancestor. Only the powers of a court of equity are ample to accomplish these purposеs. These facts and exigencies call for its interference, in order that complete justice may be done. — Wilkinson v. Stewart, 74 Ala. 198.

5. The bill alleges that the lands constitute the entire estate in Alabamа; 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 оf 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 еstate 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.

Case Details

Case Name: Marshall v. Marshall

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1888

Citation: 86 Ala. 383

Court Abbreviation: Ala.