Stein v. McGrath, 128 Ala. 175

DOWDELL, J.

The bill, as originally filed, had for its purpose the settlement of a partnership, and in this connection, the sale of certain property therein described. Walter Wood, one of the respondents, answered the bill, denying the existence of any partnership, but averring in his answer that the property was owned and held by the said parties as tenants in common. This answer was made a cross-bill, 'and prayed for a sale of the property for partition and division among the joint owners, and also for an accounting by the respondent, Louis Stein, as the managing tenant in common of the Same. Subsequent to the filing of the cross-bill, the original bill was so amended as to conform to the averments in the answer and cross-bill of Wood a® to the joint ownership of the property, and also praying for partition 'and division and for an accounting. The bill as thus amended, as well as the cross-bill, presents the simple case of a bill by tenants in common for a sale of property for division among .them. That they have a right as tenants in common so to have it sold and divided cannot be doubted. Code, §§ 3161, 3187. The only two witnesses examined on the subject testify that the property in question cannot be equitably .partitioned or divided without a sale. This being true, and the right to sell depending upon whether the property can be equitably divided, this branch of the case seems to be clearly established. — McGrath v. DeBardeleben, 75 Ala. 68; Donner v. Quartermas, 90 Ala. 164; Keaton v. Terry, 93 Ala. 85. It is also a well established principle that a court of equity may decree a partition whether the title is legal or equitable. — Hillens v. Brinsfield, 108 Ala. 605; Johns v. Johns, 93 Ala. 239; see also cases cited under section 3187 of the Code. There can be no objection that an accounting is ashed for from the alleged managing tenant in common. Aside from other considerations as to the right of the parties to have a bill in equity under certain circumstances for an accounting, [the court acquiring jurisdiction for the purpose of partition and division, in order to do full and complete justice, will settle all rights between them connected with the subject-matter. — West v. West, 90 Ala. 458.

It is, however, set up by Louis Stein and others by an amendment to their answer, filed October 17th, 1898, that the city of Mobile owns all the property in question. The statement and insistence is, (1) that by arbitration proceedings the city liad acquired Wood’s interest, which was over half the interest in the property; (2) because, as it is claimed that at the expiration of twenty years from the date when the rights and franchises were granted to Stein and others, to wit, the 7th day of January, 1841, the city of Mobile from and after said date owned said property and the title thereto, and that afterwards Stein and his associates only held it as tenants at will of the city. See Acts, 1840-1841, p. 53.

As to the first proposition, viz., that by arbitration proceedings the city had acquired Wood’s interest in the property, the transcript of the record in the case of the City of Mobile v. Walter Wood from the circuit court of the United States, for the southern district of Alabama, shows that the decree in that case held such arbitration proceedings to be void, and as inoperative to convey to the city any title to any part of Wood’s interest. This decision, which still stands and has not been 'appealed from, and until reversed by a higher court of appeal is a judicial determination of that question, is conclusive as to the parties and binding on other courts. It makes no difference that the decree was rendered on a demurrer to the bill, since the demurrer was a confession of the facts *as stated in the bill, and having been directed to the equities of the bill, based on the facts -as averred, was -tantamount to a decree on the merits upon a final submission.

As to the 'second proposition stated above, viz., that the title to the property and the rights and franchises granted to Stein -and his assigns, reverted to the City of Mobile -after the said date of January 7th, 1861, and that Stein and his assigns only held the property as tenants at will of the city, seems not now to be an open one, since it has already been adjudicated and settled by this court, and adversely to such contention, in the case of the Mayor of Mobile v. Stein, Executor, 54 Ala. 23. In that case it was said by this court: “The city reserved no property in itself in respect to Which it could exercise the rights of -a landlord. It 'only stipulated for the right to repurchase the water works at their value. * * Whose is this valuable property? Does it belong to the city of Mobile.? No one can 'doubt that it belongs to Stein, the appellee, and that the city of Mobile can acquire it only by purchase, according to the terms of its agreement and charter.” See also in this connection the case of Nat'l Water Works Co. v. Kansas City, 62 Fed. Rep. 853, where this very question is also decided adversely to the contention of appellants.

To the proposition that the city of Mobile had acquired title to part of the property, -as stated in the amendment t-o the answer, from certain of the defendants mentioned, the reply is that this transaction occurred subsequent to the filing of the bill, lis pendens, and after the lien and rights of parties had been fixed. As was said in Morton & Bliss v. N. O. & Selma Railway Co., 79 Ala. 605: “Whoever purchases property pendente lite takes it subject to the hazard of the pending litigation. The decree against the parties litigant is equally binding against all such purchasers. The unanswerable reason of the rule is that otherwise chancery suits would be absolutely interminable at the mere option of the litigants, who would be able, by collusion or otherwise, to protract litigation forever by the single devise of repeated and successive transfers from one to another.” See also Ala. Warehouse v. Jones, 62 Ala. 550; Parsons v. Johnson, 84 Ala. 254; Farmers & M. Nat. Bank v. Schuster, 52 U. C. Ct. of Appeals, 612-620. Moreover, it may be observed that ¡the city of Mobile has not asked to come into the cause as a party thereof, but it is merely suggested by the answers of the defendants.

It is also urged by appellants in their amendment ito answer, filed Jan. 21, 1898, that the complainants in the original bill had sold out their interests in the property, and therefore had no right to continue the cause. The fact that Mrs. McGrath, or Mrs. Gordon, had sold out to the city, or any other person, lis pendens, would not of itself operate an abatement of the cause.—Greil v. Randolph, 108 Ala. 601; Morton & Bliss v. N. O. & S. R’y, supra. The rights of Walter Wood, respondent in the original bill, and complainant in the cross-bill, could not be prejudiced by such transactions.

It is insisted that the complainant Wood, in the cross-bill, in his answer to the amendment of the original bill, abandoned his cross-bill. We do not so undestand the case. It is true that he stated in his answer to the amendment to the original bill that he would not insist upon his cross-bill if he could obtain the relief sought by it under the original bill as amended; and the very contention of appellants, that the sale by the complainants in the" original bill of their interests in the property operated to abate the cause, would naturally remit the respondent Wood to his cross-bill for the relief sought, since it is conceded in argument that the dismissal of the original bill would not have necessarily canned out the cross-bill. Moreover, as an evidence of the fact that there was no abandonment of the cross-bill, it was submitted upon in the submission for final decree.

We do not think there is any merit in the contention that the respondents were entitled to a dismissal of the bill because the statements made in the amendments to the answers as to the transfer of interests by the Complainants, or as to an ownership of a part interest in (the property acquired by the city of Mobile subsequent to the filing of the suit, were sustained by the evidence. This defense Was not set up by way of independent plea, nor was it incorporated in the answer as a plea, and for that reason the rule laid down in Tyson v. Decatur Land Co., 121 Ala. 414; 26 So. Rep. 507, is without application. It is true a defendant may incorporate all matters of defense in his answer, and is not required to plead specially in any case. — Code, § 699. Yet if he wishes to take advantage of the principle laid down in Tyson v. Decatur Land Co., supra, he must do so by independent plea incorporated as such in the answer, or separately pleaded. By so doing, the attention of the party is called to it, when he may take issue, or test its sufficiency by other proper pleading. If it were otherwise, and the rule laid down in Tyson v. Decatur Land Co., supra, could be applied to answers to bills in chancery, where, by express provision of the statute, no replication is necessary (Code, § 701), equity and justice would not infrequently be prejudiced or sacrificed by a defendant’s proving some immaterial fact stated in an answer. This rule of chancery pleadings and. practice as laid down by the elementary writers cited in Tyson v. Land Co. was confined to pleas, and cannot be applied to answers. Nor does the fact that the defendant may under the statute “incorporate all defenses in his answer” change the rule. The statute does not abrogate the old rule, but is only permissive. The matter set up in the amendments to the answer of respondents is not matter of defense such as to require an amendment to the bill.—Lanier v. Hill, 30 Ala. 111; American F. L. M. Co. v. Dykes, 111 Ala. 178; Planters & Merchants Ins. Co. v. Selma State Bank, 63 Ala. 585; Smith v. Vaughan, 78 Ala. 201.

There is no merit in the contention that the respondent, Wood, being a non-resident, should be required, upon filing answer and cross-bill, to give security for costs.

The respondent Stein, having been in ¡the use, possession and enjoyment of the property, is accountable to his cotenants in common for such management and their proportions of the profits thereof. — Johns v. Johns, 93 Ala. 239; Donner v. Quartermas, 90 Ala. 164.

We find in ¡the record, as part of the transcript, a bill filed by the 'City of Mobile “as an original bill in the nature of a supplemental bill of revivor,” against Walter Wood, Louis Stein and others, which appears on its face to have been filed several days after the decree appealed -from in this case was rendered, and -only fourteen days before the appeal here was sued out. There was no action taken 'by the chancery court on this bill, and we care to take no further notice of it than to 'say that we are unable to see for what purpose it was made a part of the transcript.

We find no error in the decree of the chancellor, and the same is affirmed.

Case Details

Case Name: Stein v. McGrath

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1900

Citation: 128 Ala. 175

Court Abbreviation: Ala.