75 Ala. 68 | Ala. | 1883
The original bill, filed by the appellant, seeks the partition of lands, and, incidentally, an account of rents and profits. The allegations are, that the father of the complainant died intestate, seized and possessed of the lands, whereby, eo instcmti his death, they descended to the complainant and his brothers and sisters, as tenants in common. Subsequently, without authority, the mother of the complainant made a sale and conveyance of the lands, purporting to pass the fee simple, and by mesne conveyances they have passed into the possession of the defendant, who holds and claims them adversely ; he, and those under whom he claims, having had adverse possession for more than ten years, barring the entry of the brothers and sisters of the complainant, but not barring his right of entry, because of his infancy until a period of less than three years before the filing of the bill. The parties trace title to and from the father of the complainant. A demurrer was taken to the bill, assigning numerous causes, which was sustained by the chancellor. There is presented really but a single question ; and that is, whether a court of equity will take jurisdiction to decree partition of lands, the title to which is strictly legal, of which the complainant has not possession, actual or constructive, but which are held and claimed adversely to him.
The jurisdiction of a court of equity to decree partition of lands owned or held jointly, or in common, whether the title is legal or equitable, can not be questioned.—Deloney v. Walker, 9 Port. 497; Horton v. Sledge, 29 Ala. 478 ; Arnett v. Bailey, 60 Ala. 435. If the title is purely legal, the intervention and aid of the court is not matter of judicial discretion, but, if the title is .admitted, or is clear, is matter of right in the party invoking it.—Deloney v. Walker, supra; Baring v. Hash, 1 Ves. & B. 554; Smith v. Smith, 10 Paige, 470. Nor is it dependent upon the existence of particular facts or circumstances rendering inadequate the legal remedy. The jurisdic
If; in the progress of a suit in equity for partition, a question involving the equitable title arises, the court of course determines it; for the investigation and determination of equitable titles, their recognition and enforcement, lie peculiarly and exclusively within the province of the court. Freeman on Cotenancy and Partition, § 439 ; Coxe v. /Smith, 4 Johns. Ch.-276. The title, whether legal or equitable, is, in all suits for partition, drawn in question to some extent, directly or incidentally. If the title, though purely legal, is undisputed, or, if disputed, is clear; or, if the dispute involves no matter of fact, simply a question of law; the practice of the courts in this State has been, not to regard it as an impediment to the exercise of jurisdiction. In Deloney v. Walker, supra, the parties asserted a purely legal title, descending to them as heirs; and the only point of contention was, as to the construction of the statute of descents. This question the court-determined, and decreed partition. In Horton v. Sledge, supra, the case involved a pure question of law — the construction of the limitations of a legal conveyance, under which the complainant claimed title, which the court determined. There was, however, a disputed fact involved, upon which the title of the complainant depended ; the precise time of his birth. The court declined to determine the fact, but suspended or stayed proceedings until, in an action of ejectment at law, the fact was determined. Thus, in effect, this court has declared, that the existence of disputed questions of law, or of disputed facts, upon which a legal title may depend, is not an obstacle' or impediment to the exercise of jurisdiction by a court of equity, will not oust or exclude jurisdiction, but is merely a cause for directing that the issues of fact should be determined in a
Whether the fact that, at the institution of a suit in equity for the partition of lands, the defendant has open, notorious, exclusive possession, claiming in hostility to the title of the complainant, not so long continued as to bar the right of entry, precludes the jurisdiction of the court, is a question embarrassed by a conflict of authority. The defendant being in possession under a conveyance from a stranger to the title of the complainant, purporting to pass the entire estate in fee simple, and claiming the lands as his own and for himself exclusively, must be regarded as having disseized the complainant; however clear his title may seem to be, there remains to him only the right of entry which will support ejectment, or the corresponding statutory real action. We are not aware of any authority in England, which declares that the disseizin of a tenant, not so long continued as to bar the right of entry, is an impediment to the exercise of the jurisdiction of the court. All controversies there arising as to the legal title, if not determined by the court, are regarded only as cause for staying proceedings and directing actions at law.—Parker v. Gerard,
The chancellor was in error, in sustaining the demurrer; and the decree must be reversed, the demurrer overruled, and the cause remanded.