60 Ala. 338 | Ala. | 1877
It may be admitted that the Court of Probate, in the matter of the partition of property, real or personal, between tenants in common, or joint owners, is a court of limited or statutory jurisdiction, and that it is essential to the regularity of its sentence that its records should disclose every fact orr which the jurisdiction depends. Tet, when its jurisdiction is apparent on the face of its proceedings, the rule applies that is applied to courts of general jurisdiction, that all reasonable intendments must be made to support its decrees.—Wyman v. Campbell, 6 Port. 219; Key v. Vaughn, 15 Ala. 496; Wilson v. Wilson, 18 Ala. 176. If through the jurisdiction of the Court of Probate the partition of lands is sought, it must be by an application in writing, made to the judge of probate of the county in which the lands are situate, by the joint owners, or tenants in common thereof, or one or more of them. The application must set forth the names of all the persons interested in the lands, and their residence, and the lands must be described; the interest of each joint owner, or tenant in .common, must be stated, and the number of shares into which the lands are to be divided. — E. C. §§ 3105-06. When the application is filed, the jurisdiction of the court attaches. The subsequent proceedings are in the exercise of the jurisdiction; and while the record must disclose a substantial conformity in them
The record discloses that an application, in writing, was made to the Court of Probate, averring every fact on which its jurisdiction rests, unless the fact disclosed, that the parties between whom partition was sought owned unequal interests, so that partition by lot was impracticable, prevented the jurisdiction from attaching. The jurisdiction is dependent on the joint ownership, or the tenancy in common, not on the equality of the interest of the owners, or tenants in common. If property is held by them, though in unequal interests, the jurisdiction exists, and the decree must be for a partition or division, according to their respective interests therein. — E. C. § 3108. Neither the language of the statute, nor the manifest object of its enactment, justifies the limitation of the jurisdiction to eases in which the tenants in common have equal estates or interests, and there can be partition by lot. The application clothed the Court of Probate with the jurisdiction it exercised.
The remaining grounds of error are of matters touching the regularity of the proceedings of the commissioners appointed to make partition, and the sufficiency of their report. If there he any force in these objections, they were the proper matter of exception to the report in the Court of Probate. No such exceptions were interposed in that court, and we must decline now to consider them.
The decree of partition is affirmed.
