Smith v. Dunn

27 Ala. 315 | Ala. | 1855

RICE, J.

We shall notice only the point made in the argument of appellant’s counsel. That point is, “that the title of complainant in the slave, in which partition is sought by the bill and decreed by the chancellor, is denied in the answer of the defendant; and such being the case, the court cannot go on and decree partition, but will at once dismiss the bill, or, perhaps, direct an issue at law to be tried.”

We may concede, that in a bill for partition of land, if the defendant denies the title of the plaintiff, and sets up an adverse possession and a title in himself in severalty, the court of chancery will not proceed, until the plaintiff establishes his title by an action of ejectment. But the reason for this rule is, that a tenant in common of land may bring ejectment against his co-tenant, when there is an actual ouster ; and such denial and claim set up in the answer is taken to be an actual ouster. — Edwards v. Bennett, 10 Iredell’s R. 361 ; Delony v. Walker, 9 Porter’s R. 497; 2 White & Tudor’s Leading Cases, part 1, top pages, 531 to 538.

This reason, and the rule founded on it, cannot be applied as,between tenants in common of a slave: one of such tenants cannot maintain an action at law to try or establish his title, against his co-tenant, whilst the latter continues in the possession of the slave. — Parminter v. Kelly, 18 Ala. 716 ; Edwards v. Bennett, supra.

If the above mentioned rule, as to tenants in common of land, were applied to tenants in common of slaves, there would be no remedy in any court for the latter class of tenants, whenever the tenant holding the actual possession denied the tenancy in common or the title of his co-tenant. “ Where there is a right, some court must be empowered to make it effectual.” Partition by tenants in common of chattels, could not be had in the common-law courts : they had to go into the courts of equity, to effect that object. — Irwin v. King, 6 Iredell’s R. 219.

Without deciding anything as to a bill for partition of land, we hold, that a mere denial by the defendant, to a bill for partition of a slave, of title in the complainant, is, by itself, no ground for dismissing the bill, or for directing an issue at law to be tried. — Overton v. Woolfolk, 6 Dana’s R. 374 ; Edwards v. Bennett, supra.

Having now decided the point made by the appellant adversely to him, we wish it understood that our decision is confined to that point. Decree affirmed, at the costs of the appellant.