139 Ala. 319 | Ala. | 1903
Complainant, Sarah. R. King, filed her bill averring tlie tenancy in common with Amos II. Mylin and George A. Hill, of the premises described in the bill, each being the owner of an undivided third interest therein; that the land could not be fairly and equitably divided in kind between the joint owners, and that a sale thereof was necessary in order to effect its division. By an amendement of the bill, the facts relied on to show that the land was incapable of partition in kind, and, therefore, a sale was necessary for that purpose, are clearly and fully stated.
The original bill set out the existence of an executory contract between the parties, of date the 15th of May, 1900, by which, as averred, complainant advanced to and for said Geo. A. Hill, the sum of $1,S71.C>7, and prayed, in addition to the prayer for a sale of the premises for partition and a division of the proceeds of the sale among the joint owners, and for general relief, that a lien be declared in her favor against the interest of said Hill in said lands. By the amendment of the bill, all that part of it, including the prayer which related to the said contract of May 15, 1900, was stricken, leaving the bill as simply one for a sale for partition. That part of the original bill and its prayer which was stricken was of so easy identification as did not require it to be set out in haec verba. Under the bill as it stood, after amendment, each of the three parties to it were averred to be tenants in common of a third interest in the lands, and, as stated, sought a sale for partition.
The defendants answered the bill, and denied that the property could not be equitably divided in kind. This question may be here disposed of and eliminated from further consideration, by stating that it has been made clearly to appear from the evidence, that the parties owned the property as tenants in common, each owning a third undivided interest, and that, it was not susceptible of an equitable partition in kind. The averments of the bill as to this fact are fully sustained by, and without conflict in, the evidence. Defense is made. hoivever, against the decree of sale on grounds to be now considered.
The defense grows out of an agreement entered into between the parties, — complainant Mylin and Hill, — on the 2d of January, 1901, for the sale of his one-third interest in the lands in question by Hill, to complainant and Mylin on the terms therein mentioned, to become binding on the parties on the due execution thereof. This agreement so far as complainant was concerned, was never executed; but, by an agreement afterwards mutually had between her and Hill, and at his instance and request, as the evidence clearly shows,'it was agreed between them, so far as they were concerned, that this contract should be rescinded and cancelled and held for naught. This was competent to be done, the law being that parties may, at pleasure, alter, modify, or rescind a contract, without, any new consideration therefor, if the alteration, modification or rescission is supported by their mutual assent. — 3 Brick. Dig. 132, § 146; Hembree v. Glover, 93 Ala. 622.
Mylin would not consent to rescind this agreement; but that had no effect on the right of Hill and complainant to do so. Between Mylin and complainant, in their obligations to Hill under this contract, it was several as
The decree of sale was rendered in this case, in vacation, and was filed on the 5th day of May, 1902, but the register was directed to take no steps to make said sale, until after the next term of the court. On the 16th of that month, the defendants filed a motion to suspend the execution of said decree, unti-l a decision was reached “in the cause wherein Geo. A. Hill and Amos H. Mylin are complainants and Sarah R. King is respondent,” pending in said chancery court, on the ground, that the title to said property is involved in said case, “the question involved being as to whether or not anything is due to said Sarah R. King, or whether she has a lien on the one-third interest in said lands owned by Geo. A. 1-Iill,
In the decree of sale, it was directed that any party to this suit may become the purchaser, and all other questions than the ones passed on were reserved. We fail to discover wherein the decree of sale, or in refusing to stay the sale under it, as moved for, tlie court committed any error.
It is contended by appellant Mylin, Avho appealed for himself and Geo. A. Hill, — the latter assigning no errors, — that he filed a plea in the cause, which was not set down for hearing,' and the same was fully proved, and on that account, he is entitled to a reversal of the cause.
As applicable to the case it may be added, that partition is a mateer of right, and may be decreed by a court-of equity whether the title of the parties be legal or
Discovering no error in the decree of the court, it is affirmed.