90 Ala. 458 | Ala. | 1890
The bill is filed by appellee, as the guardian of William F. Johnson, against wdiom an inquisition of lunacy .was taken in the Probate Court of Yell county, Arkansas, and seeks a partition of the lands owned by his ward and the defendants as tenants in common. The first ground of demurrer is, that the lunatic is not made a party. The general rule in a court of equity is, that all persons having a material interest in the subject-matter of a suit must be made parties, in order that complete justice may be done, and that they may be concluded by the decree; and this rule applies to infants and lunatics. The settled practice in England, in bringing suits in the Chancery Court for the benefit of lunatics, is to file the bill in the name of the lunatic by his committee, or to join the lunatic and committee as complainants; unless the object of the suit is to avoid an act done by the lunatic during his lunacy, in which case he may be joined or omitted. — Willis’ Eq. Pl. 5; Cooper PI. 31. The rule is thus stated in Story’s Eq.
In Gorham v. Gorham, 3 Barb. Ch. 24; s. c., 5 N. Y. Ch. Rep. 801, the question of the necessity of making a lunatic a party was fully discussed, and the foregoing rules sustained. After reviewing the elementary writers and authorities, the chancellor observes : “ When it is said by these writers that idiots and lunatics must sue by their committees, it is not meant that the suit is to be brought by the committee in his own name, merely describing himself as the committee of the lunatic, as has been erroneously supposed by the court of one of our sister States. But they mean that the suit should be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming them, as in the case of an infant suing by his next Mend; or, that the suit should be prosecuted in the names of. the lunatic and of his committee.” The necessity of making the lunatic a party rests on the principle, that a decree in favor of his guardian, merely describing himself as such, would not be a decree in favor of the lunatic; and if the. suit proved unsuccessful, would not protect the defendant from subsequent litigation by the lunatic, should he be restored to soundness of mind, and to possession and control of his property. In the present bill, complainant describes himself as guardian of the lunatic, and brings the bill for his ward, naming him. This, as it appears from the above authorities, is insufficient to make the lunatic a party, so that final decree of partition shall conclude him.
But it is contended that this mode of bringing the suit is authorized by section 2582 of the Code, which provides that: “ In all suits in which the ward has an interest, and the recovery enures to his or her benefit, a guardian may sue in his own name for the use of the ward.” This statutory provision does not apply to suits*in chancery. In Blackman v. Davis, 42 Ala. 184, the guardian of minor children filed, in his own name, an application for the removal of an administrator. The petition was demurred to, on the ground, that the guardian was not authorized to file it in his own name. After stating that the petition did not conform to the requirements of section 2036 of Code of 1852, which corresponds to section 2582 of the
There are several causes of demurrer which may be comprehended in one general assignment — namely, that the lands constitute an entire- traet, in a part of which the co-tenants have only an estate in reversion, not subject to partition. The demurrer as to these causes is based on the following facts: The parties derive title to all the land by descent from their immediate ancestor. At the time of his death they constituted an entire tract; and since then a distinct portion has been carved out and assigned to his widow as her dower, she still living. The parties having an estate in reversion in the' part of the lands assigned for dower, so that partition thereof can not be decreed, defendants insist that complainant is not entitled to partition of the remaining -lands. The rule invoked is, that partition will not be awarded by fragments or parcels, but must be made of the entire estate. The general rule that a suit for partition of a parcel will not be entertained, where the estate in common consists of an entire tract to which there is a right to immediate partition, has no application, when there is a present title and right of possession to a portion, and a reversionary interest in another and distinct part. In such case, though the entire estate may be derived from the same source at the same time, the titles to the respective parts are distinct; and it is said in Wilkinson v. Stuart, 74 Ala. 198: “ For all legal purposes, and in legal effect, the parties stand in a relation they would occupy if the several titles had been derived by several instruments, to distinct, different tracts or parcels of land. In such case, the rule invoked could not be applied, and it is not now capable of application, constraining unwilling tenants into the continuance of a relation they are anxious to dissolve, and which may be dissolved as to all the lands they hold by present title, attended with the right of present possession,”
Though the complainant does not seek partition of that part of the lands in which tlie' parties have an estate in reversion, the bill prays that his ward’s undivided interest therein may be sold. This constitutes a joinder of two distinct subject-matters, which have no connection with each other, and in one| of which the defendants have no interest, and renders the bill multifarious.
Reversed and remanded.