Sandlin v. Sherrill

■GARDNER, J. The bill in this cause has for its prime object the sale of lands for division among tenants in common. All other questions as to the accounting sought and the removal of clouds upon the title are but incidental to this main equity. Some of the alleged tenants in common were minors, and the averments of the bill were by the guardian ad litem denied, as well also denied in some of the answers of the other respondents. [1] A very necessary averment in a bill seeking a -sale for division among tenants in common is that the lands cannot be equitably divided among said joint owners without a sale thereof. This is a question of fact, and necessary to be here proven. The record has been carefully examined, and we find no evidence whatever touching this important feature of the bill. For a failure of this proof, therefore, the bill as one seeking a sale of the lands for division among the tenants in common was properly dismissed. Smith v. Witcher, 180 Ala. 102, 60 South. 391; Ezzell v. Wilson, 200 Ala. 612, 76 South. 970. [2] The other questions involved were but ancillary to the main equity of the bill, as previously stated, and the 'bill, having been properly dismissed for want of proof as to its principal equity, carries with it those questions which are merely incidental, including the question of accounting. In view of the situation here presented, however, we have concluded to exercise discretion, and modify the decree dismissing the bill, that it may be without prejudice to the rights of complainant in the prosecution of other suits involving any of the matters herein set up. We might add, moreover, that the bill shows respondent Anders only purchased a life estate, which had expired, and he was therefore not a tenant in common of the land; and the complainant not being in possession, it would seem, so far as that respondent was concerned, what was said by this court in Brown v. Feagin, 174 Ala. 438, 57 South. 20, would be applicable to the situation here presented. See, also, Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 South. 880. We merely make this observation in anticipation of further litigation. It results that the decree appealed from will be affirmed but modified as above indicated so that the dismissal of the bill will be without prejudice. Modified and affirmed. ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.