Guilford v. Madden

B. F. SAFFOLD, J. The appellant applied to the probate court to sell for division a tract of land of which, as alleged, he and the appellee were joint owners or tenants in common. The appellee denied the petitioner’s ownership and possession generally. On the hearing, the applicant offered in evidence to prove his title a mortgage from Michael Madden, the husband of the contestant, of an undivided half of the land to J. W. Harper, a deed from Mary P. Harper, as executrix of J. W. Harper, to Henry A Young, reciting a sale to Young under the mortgage, and' a conveyance from Young to the petitioner. This evidence was excluded by the court at the instance of the contestant, and the petition was dismissed. From this judgment the appeal is taken. Section hl20 of the Revised Code authoi’izes the probate court to decree a sale of all property, whether real, personal or mixed, held by joint owners or tenants in com [293] mon, when the same cannot be equitably divided between them. In exercising this power, the court has not jurisdiction to determine complicated questions of law or fact respecting the title to the property. But it may decide a question of title turning alone upon the interpretation of a deed of undisputed validity. In other words, it is obliged to receive the ordinary evidence of a claimant’s right to his property, otherwise every proceeding of this sort would be defeated by a simple denial of his title on the part of the contestant. — Horton v. Sledge, 27 Ala. 478. The objection made by the contestant to the admission of these deeds was, that no note or memorandum of the sale under the mortgage was made by the auctioneer. The conveyances answered the demand of the statute of frauds. The depositions of the witnesses were admissible, and necessary to show that the land could not be equitably divided without a sale. The judgment is reversed, and the cause remanded.