Ezzell v. Wilson

GARDNER, X As to whether or not the land here sought to be sold for division, described in the original bill, could be equitably partitioned between the joint owners thereof without a sale, was one of the closely contested questions of fact presented by the evidence. No good purpose will be served by a discussion of the testimony. A brief outline of the character of the testimony offered on this question appears in the statement of the case, and will suffice as an indication of the general character thereof. [1] Upon a careful review of the evidence in this record, we have reached the conclusion that the preponderance of the evidence is in favor of the complainant upon this issue of fact. Sheffield C. & I. Co. v. Ala. F. & I. Co., 1985 Ala. 50, 64 South. 67; Trucks v. Sessions et al., 189 Ala. 149, 66 South. 79; Smith v. Witcher & Hicks, 180 Ala. 102, 60 South. 391. [2] The lands described in paragraph 5 of the cross-bill are situated in Colbert county, Ala., and under the decision of this court in Clark v. Smith, 191 Ala. 166, 67 South. 1000, jurisdiction thereof for this purpose, even by cross-bill, in this suit which was in Franklin county, may be seriously questioned; but aside from this, and without a determination thereof, the evidence is without dispute that the title to the 80 acres of land described was in complainant to the original bill. Co-tenancy is an indispensable element of each compulsory sale for division under our statutes. The cross-bill averred the cotenancy and was. not sustained by the proof. Kelly v. Deegan, 111 Ala. 152, 20 South. 378; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 South. 880. If it be conceded, without deciding, that the matters set up in paragraph 6 of the cross-bill were proper here to be considered, 'yet we agree with the court below in the conclusion rea.ched, that these matters had been finally adjudged and settled between the parties prior to the filing of the bill in this cause. We conclude that the decree of the court below is correct, and the same will, accordingly, be here affirmed. Affirmed. ANDERSON, C. X, and McCLEDLAN and SAYRE, XT., concur.