105 So. 199 | Ala. | 1925
Appellee filed the bill seeking the sale of a piece of land, which descended to the parties as cotenants from their common ancestor. Appellant Smith filed his cross-bill, averring an agreement between himself and the other cotenants — of whom there were two besides the original complainant — by which they had agreed that he should have possession for the purposes therein stated, and, in substance, it may be conceded that there should be no partition among them. Cross-complainant averred, among other things, that original complainant, in violation of the agreement between the parties, had usurped possession and control of the land, and refused, after demand, to surrender possession or pay rent. The prayer of the cross-bill is that the agreement be enforced and the cross-complainant restored to possession. The trial court sustained a demurrer to the cross-bill; hence this appeal.
Conceding that the agreement in question may be construed as a contract against partition or division without complication, it should be upheld as such contract for a reasonable time. Agreements for the perpetual forbearance of a suit for partition are contrary to that policy of the law which maintains the right of partition as an absolute right, which yields to no consideration of hardship or inconvenience. Freeman, Cotenancy and Partition (2d Ed.) § 442; Haeussler v. Missouri Iron Co.,
But the promise to forbear division or partition was made for the purpose of insuring to appellant an opportunity to execute the agency, the power of attorney, conferred upon him by the agreement. The agreement conferred upon him no interest except as agent or attorney, and that alone is the interest he now seeks to conserve and enforce. It created no interest in the land but only in the exercise of the power. Such being the case, the agency was revocable at the pleasure of any party thereto. Millican v. Haynes (Ala. Sup.)
The decree sustaining appellee's demurrer to appellant's cross-bill is due to be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.