Tate v. Goff

[185] Judgment affirmed. By amendment the petitioner alleged: She is the owner of a sixth undivided interest in lot 46. John A. and Miss Lou Tate took exclusive possession of this whole lot, and have since claimed to own the whole of it, denying that petitioner had any interest therein, and have refused repeatedly to allow her demands for her part of the land. Petitioner’s one sixth interest has been worth for rent $100 per annum since January 1, 1887, and defendants haVe refused to account to her for it. She desires a partition of the land between herself and her cotenants. The land is not of uniform value, and besides there are valuable improvements on part of it, for which reason no fair and equitable division of it by metes and bounds can be made. Wherefore she prays for judgment for the recovery of her-interest in the land and for the rents, etc. due her therefor, and a decree ordering a sale of the land to he conducted by commissioners; and that when sold, her part of the proceeds be paid over to her. Miss Lou Tate pleaded: Lot 46 was, on January 17, 1870, set apart to Yan Tate, defendant’s father, as a homestead for the benefit of his wife and two minor children. Yan Tate and his wife are dead. Lou Tate was, on January 17, 1870, one of the minors for whose benefit the homestead was taken. She is still a member of the family, is a dependent female, has never married, is dependent upon the homestead so taken out for a support, and is now and was at the commencement of the suit more than twenty-one years of age. This plea was demurred to, upon the ground that it was insufficient in law, and because the facts stated therein showed that the homestead had terminated. The demurrer was sustained. Before a jury was empanelled the defendants objected to the amendment to the petition, on the grounds that it had not been served twenty days before court, and that it changed the cause of action. They excepted to the overruling of these objections, and to the sustaining of the demurrer to the plea. Hood & Moye, by brief, for plaintiffs in error. W. C. Worrill, by brief, contra.