Hines v. Trantham

RICE, J. Tenants in common of land may maintain separate actions of trespass to try titles, for their interests. Craig v. Taylor, 6 B. Monroe, 451 ; Baker v. The Heirs of Chastang, 18 Ala. R. 417 ; Childers v. Tankersley, 28 ib. 781; Adams on Ejectment, 211. Upon the facts shown in the bill of exceptions, Mrs. Hines was one of the heirs of her father, and also one of the heirs of her sister, Mrs. Crimm. In 1845, Mrs. Crimm died, without issue, and her husband died before this suit was commenced. Conceding, then, that the proceedings of the Orphans’ Court óf Pickens county, and of the commissioners appointed by it, are void, and did not invest Mrs. Crimm with title to any land ; yet, as one of the heirs of her father, she had such an interest in his land, as would, upon her death without issue, descend to Mrs. Hines, as one of her heirs, and entitle her husband and her to maintain trespass to try titles, to recover that interest. This plain legal proposition is denied by the fourth charge of the court below, as we understand that charge, and as the jury doubtless understood it. In this, the court below erred ; and for that error, there must be a reversal, although there may be defects in the plaintiff’s proof on other material points — it not appearing that these defects cannot be supplied on another trial. — Cotten v. Thompson, 25 Ala. R. 671. Judgment reversed, and cause remanded.