Tindal v. Drake

BRICKELL, J. There are questions of grave importance [577] to the parties in interest, suggested by the argument of counsel, which must arise in the future progress, and on the final determination of this cause, on which we forbear to express an opinion in the present state of the record. In view of the tendency of modern decisions, some of which are collected and reviewed in Williams v. McConico (36 Ala. 28), the quantity and character of estate taken by Sarah E. Tindal and her children— whether she had a life estate, and her children a remainder, or whether she and her children take an immediate estate jointly, converted by our statute into a tenancy in common, and whether this estate is subject to open and let in after-born children — are questions to be carefully considered, when directly presented. The particular causes of demurrer assigned do not raise these questions. On these questions, a proper conclusion may be greatly aided, if, as may possibly be inferred from the allegations of this bill, and the conveyances exhibited, Harvey Tindal’s trusteeship was not created by them, but was in existence, and its conditions, and the trust estate committed to him, and to which the subject-matter of these conveyances are mere accretions, were created and defined by some previous appointment and conveyance. If it was so created, the bill should be amended, so as to disclose fully the origin and character of that trusteeship, and, if it be a fact, that the lands in controversy were acquired by him while acting as trustee, and subordinated to the trusts previously imposed. There is a point of view, in which this is indispensable. The present trustee was appointed, as successor of Tindal, in 1854. A part of the premises, of which partition is sought, was conveyed to him in 1856. If the character of that conveyance, and the estate it creates, are to be determined alone from its terms, the present trustee is the mere repository of a naked legal title, charged with no duty, and subject to no responsibility. Under the Code, such an assurance does not pass the legal estate, or any other right or interest, to the trustee. Its operation is to merge the legal and equitable estate in the eestuis que trust, or those who would have been eestuis que tmcst at common law. R. C. § 1576; You v. Flinn, 34 Ala. 409. The bill is not obnoxious to the causes of demurrer specifically assigned. Its object is a partition of lands, and an account of rents and profits, from one who is in possession under a conveyance from one claiming to act as trustee and Sarah E. Tindal. This conveyance, so far as we can determine from the allegations of the bill, was inoperative as against the complainants, passing to the grantee only the estate of Sarah E., whatever that estate may be finally ascertained to have been. The complainants are children of Sarah E. Tindal, taking directly [578] under the several conveyances, either as tenants in common with her, or in remainder at her death (which is averred in the bill), and the children and heirs of some of her children, who so took, and have died. The first ground of demurrer is, that there is a misjoinder of complainants — that the childrexi taking under the conveyances cannot join with the other complainants who take as heirs. Whether the children take in remainder, or take immediately, they take as tenants in common, and, on the death of either, his estate descends to his heirs-at-law, and they have then the community of interest with the surviving tenants which their ancestor had. This community of interest entitles the parties to join as complainants in a bill for partition. The heirs must have been parties, either as complainants or defendants; and they could properly elect, whether they would seek partition as complainants, or remain passive, and take the place of defendants against whom it was sought. The next ground of demurrer is, that the personal representatives of the children dying are not made parties. If the object of the bill was a partition of personalty, the title to which would by law devolve on such representatives, they would be indispensable parties, unless the bill averred, as it does not, the existence of particular facts, which have been held to dispense with the necessity of tracing title through them. The subject-matter of the suit, however, is a partition of real estate. At common law, an executor or administrator is the representative of the personalty only. By virtue of his office, he had no right to the possession of the lands of the testator, or intestate. If the lands were devised, they passed to the devisees ; if not devised, they descended to the heir-at-law, who alone was entitled to the possession. 1 Brick. Dig. 935, § 316. The statutes of this State confer on the personal representative authority to rent, and to obtain judicial decree for the sale of lands. These statutes are not construed as intercepting the descent, or affecting the common-law right of the heir to recover rents and profits, until the personal representative asserts the power they confer. 1 Brick. Dig. 937, § 332. So far as the bill seeks partition, and an account of rents and profits after the death of the several ancestors of the heirs who are complainants, the personal representatives are not necessary parties. If an account of the rents and profit's accrued prior to the death of the ancestors is sought, the personal representative is a necessary party, unless his presence can be dispensed with by the averment of facts not found in this bill. But if these representatives are, in any aspect of the ease, material parties, the bill should not have been dismissed for want of them ; an opportunity should have been afforded the complain [579] ants by an amendment to introduce them. It would be a harsh practice, which this court has often discountenanced, to dismiss a bill containing equity, because of a want of proper parties as to a part of its subject-matter. 1 Brick. Dig. 753,§ 1691. The personal representative of Sarah E. Tindal could not possibly have any right or interest in this suit. The defendant Drake, by a conveyance from her in her life, had succeeded to all her estate in the lands. If such representative had been made a party defendant, he could have demurred for a misjoinder. If made a party complainant, the defendants could have demurred for like cause. The bill is not multifarious. It does not set out several distinct, unconnected matters. If the defendant Drake has, as the demurrer avers, no interest in the question of the removal of the trustee, he has an interest in the partition of the lands, and against him only is an account of rents and profits sought. To these, the most material part of the case, he is an indispensable party. The removal of the trustee is prayed, because of his failure to assert the alleged rights of the complainants. Whether the conveyance to Drake is unauthorized, and the trustee’s acquiescence in it is ground for his removal, is of vital importance to Drake. The whole matter of the bill is so connected, that it would not comport with the established policy of a court of equity, to avoid a multiplicity of suits, to compel the complainants by one suit to have sought a removal of the trustee, and by another partition and an account of rents and profits, to which probably Drake would have had the right to require the trustee to be made a party, that the legal title might be bound by the decree rendered. Horton v. Sledge, 29 Ala. 478; Kennedy v. Kennedy, 2 Ala. 573. The bill was properly filed in the chancery district in which the lands are situate, and in which material defendants reside. The mere fact, that the trustee was appointed by the court of another district, does not draw to that court exclusive jurisdiction of this suit, whatever would be the rule if the trustee had been accounting to that court, and a settlement of his trust only was sought. The decree of the chancellor is reversed, and the cause remanded.