116 Ala. 593 | Ala. | 1897
1. The original bill may not have stated accurately, or may have stated ambiguously, the relation of the parties, leaving it in doubt whether they were tenants in common, or partners. This being true,'curing the insufficiency or imperfection of allegation by amendment was matter of right at any time before final decree. — Code of 1886, § 3449. By amendment, a new cause of action may not be substituted for that stated in the original bill; nor can there be such change, or varying of the statements of fact, as would entitle the plaintiff to relief essentially different from that prayed by the original bill. The correction of the inaccurate or ambiguous statement of the real relation of the parties cannot properly be said to substitute a new cause of action, or to vary essentially the relief which could have been obtained on the original bill, if the inaccuracy or-insufficiently had not existed. The cause of action — the partition of the property by sale, because it was incapable of division otherwise — remains the gravamen of each bill, and curing the defective statement of the .relations of the parties, by amendment, was matter of right.
2. The statute (Code of 1886, § 3262), confers jurisdiction on the court of chancery, concurrent with that conferred on the court of probate, to divide or partition, or to sell for division or partition, any property,' real, personal, or mixed, held by joint owners or tenants in common. If the remedy is sought in the court of probate, a statutory requirement is, that the application must set forth “a full and accurate description of the property sought to be divided or partitioned.” — Code of 1886, § 3239. This corresponds with the general rule at law, or in equity, in reference to the elements of the pleading in suits for partition. — 17 Am. & Eng. Encyc. of Law, 733. The necessity for such description is not now controverted, but the particular question is, whether an amended bill not in its premises, or stating part, de
Reversed and remanded.