Ward v. Corbett

72 Ala. 438 | Ala. | 1882

STONE, J.

This was a proceeding instituted in the Probate Court, for the partition of a small lot of land, under Article 1, Chapter 14, Title 2, Part 3 of the Code of 1876, commencing with section 3497. The petition sets forth that the land is held and owned by four equal tenants in common, of whom the petitioner, Mary Corbett, and Peter Ward, the appellant, are two. In proceedings such as this, in the Probate Court, the partition can only be made by lot; and hence, if the land be not susceptible of division into equal parts, or parts of equal value, partition can not be made by metes and bounds; and if the tenants own in unequal interest, the Probate Court lias no jurisdiction to effect partition.—Whitman v. Reese, 59 Ala. 532; Newbold v. Smart, 67 Ala. 326; Terrell v. Cunningham, 70 Ala. 100.

The answer to the partition is not very fully expressed; but great technicality in pleading is not required, in cases like this. One ground of defense relied on is, that Mary Corbett, the petitioner, had previously conveyed to Peter Ward a certain described part of the land she seeks to have partitioned; and that he, Ward, had sold back the lot to her, but she had not paid the purchase-money. Now, if we admit that Mary Cor-bett’s conveyance to Peter Ward did not transfer the absolute ownership to that part of the land, because she herself owned but an undivided interest, it was good to convey her undivided fourth interest in that part of the lot, and this destroyed the equality of ownership. If true, this ousted the Probate Court of jurisdiction. The court erred in sustaining the petitioner’s demurrer to the answer.

The claim for improvements alleged to have been made by Ward, is scarcely full enough to raise the question.—Freeman on Co-Tenancy, §§ 261, 510; Drennen v. Walker, 21 Ark. 539; Seale v. Soto, 35 Cal. 102; Brookfield v. Williams, 1 Green, C. C. 341; Crafts v. Crafts, 13 Gray, 360; Hart v. Hawkins, 3 Bibb, 502; Pope v. Whitehead, 78 N. C. 191.

The case of Stimpson v. Malone & Foote, 60 Ala. 338, so far as in conflict with this opinion, is overruled.

Reversed and remanded.