Wilkinson v. Stuart

BB.ICKELL, C. J. — The partition of lands between joint tenants, tenants in common, and co-parceners, is an established head of equity jurisdiction; and though there may be doubt as to its origin, it is now generally rested on the inadequacy of remedies at law, and the capacity of the court to grant more complete relief, ad justing the equities of the parties, and'meeting exigencies or necessities’which may be peculiar to the particular case. — 1 Story’s Eq. §§ 646-50; 2 Lead. Eq. Cases, 894; Deloney v. Walker, 9 Port. 497. If the title of the plaintiff is-clear, or if it is admitted, the partition is matter of right, not matter of discretion in the court. By statute, it is very common to confer a like jurisdiction upon other tribunals, of superior or inferior jurisdiction. Such statutes, if thereby the equitable jurisdiction is not negatived, are construed simply as affording a cumulative remedy, not as restraining or excluding the equitable jurisdiction. — Freeman on Co-tenancy, § 428. The Code confers on the judge of the Court of Probate a large jurisdiction to order the partition of property, real or personal, held jointly or in common, but declares, in express terms, that a resort to other legal remedies for the partition of lands is not excluded. — Code of 1876, §§ 3497-3513. But it is not to be doubted, that so far as the jurisdiction of the judge of probate is concurrent with that of a court of equity, if he first acquires jurisdiction, it becomes exclusive, and he must continue in its exercise, unrestrained by the interference of the court of equity, unless facts or circumstances of special equitable cognizance are shown to exist, which render inadequate the statutory jurisdiction.— Waring v. Lewis, 53 Ala. 615; Moore v. Leseuer, 33 Ala. 237; King v. Smith, 15 Ala. 270. 2. When the present bill was filed, there was an application pending before the judge of probate, not for a partition of the common estate, but for its sale for distribution, upon the jurisdictional allegation, that an equitable partition could not be made. In addition to the jurisdiction to decree partition, the Code confers on the judge of probate jurisdiction to order a sale of the common estate, upon allegation and proof of the fact that otherwise than hy sale an equitable partition or division can not be made. — Code 1876, §§ 3514-20. This juris [204] ■diction is distinguishable from that which the judge exercises in ordering a partition of the property m specie, and, as to the adult tenants, it is exclusive. For, in this State, it is the settled course of decision, that a court of equity can not decree the sale of lands held by adult tenants, without their consent, to effect partition, because the same can not be equitably divided. Oliver v. Jernigan, 46 Ala. 41; Deloney v. Walker, supra. What would be the effect of the pendency of this petition, if it was not shown that the common estate is capable of an equitable partition, and that there are facts and circumstances, of which the judge of probate can not take cognizance, rendering it the duty of the court decreeing partition to order the assignment to the complainant of a particular part of the common estate, it is not necessary to consider. These facts and circumstances justify the intervention of a court of equity that complete justice may be done. 3. The complainant had entered upon a part of the common estate, reduced it from a wild or waste condition to cultivation, and made valuable improvements thereon. His labor and money were expended with the knowledge, and the implied ■consent, if not the express authorization, of his companion, who had not improved any part of the estate, leaving it, so far as he was concerned, in the condition it was when acquired. Although a tenant making improvements upon the common estate, without the authority of his companion, may not have a remedy to recover their value; yet, upon partition under the decree of a court of equity, the court will so order the division that he may have the benefit of the improvements, by an assignment to him of that portion of the estate on which they are situate. 1 Wash. Real Prop. 582; Freeman on Co-tenancy, § 508; Story’s Eq. § 656 b; Brookfield v. Williams, 1 Green’s Ch. 341; Pope v. Whitehead, 68 N. C. 199. In the exercise of the statutory jurisdiction with which he is clothed, the judge of probate could not take cognizance of this equity of the complainant, adjusting the partition so as to meet and satisfy it. A partition by lot is all that he could decree, and he was without power to give the commissioners, appointed to designate and draw the lots, special instructions which may be necessary to adjust the equitable rights of the parties.— Ward v. Corbitt, 72 Ala. 438. 4. The bill is not objectionable, because the complainant does not offer to pay for the use and occupation of the part of the lands he had cultivated. His entry and possession was not in hostility or exclusion of his companion, who had an equal right, if he had chosen to exercise it, to enter and occupy. The rule is well settled, that a friendly occupancy of the common estate by one tenant does not render him liable to account for rents [205] and profits. — Newbold v. Smart, 67 Ala. 326; Terrell v. Cunningham, 70 Ala. 100; Lockard v. Lockard, 16 Ala. 433. 5. The parties derive title, to the lands held in common, under a conveyance to them jointly. The lands consist of several distinct tracts or parcels, wholly disconnected, separated by varying distances, and do not seem ever to have been occucupied as constituting an entire plantation, and are incapable of such occupancy. There is a part of them, in which the parties have only an estate in reversion, and a right to possession will not accrue until the falling in of a life-estate of the widow of a former proprietor, from whom the title is deduced. In the absence of statutory provisions authorizing it, the rule is established, that neither at law, nor in equity, can partition be awarded of an estate in reversion or remainder. 1 Wash. Beal Prop. 581; Freeman on Co-tenancy, §§ 110-11;, 2 Lead. Cases Eq. 985. It is insisted that, as the court can not decree partition of this part of the lands held in common, there should not be a partition of the other parts, of which there is present title and possession. The general rule, which is invoked, that partition must be made of the entire estate — that it can not be claimed of a part — can not be questioned.' — -1 Wash. Beal Prop. 582; Freeman on Co-tenancy, § 508. The rule is justly applicable, when the common estate consists of a single tenement, qr of an entire tract or parcel of land. A partition by parcels might then result, instead of giving either tenant his share in one connected parcel (which is always done when practicable), in compelling him to take in disconnected, disjointed fragments, impairing the value of the whole and all the parts of the common estate. And in any case, when there is, as to the entire estate, a right to immediate partition, the result of entertaining a suit for partition of apart, would be the splitting up of a cause of action, in its nature entire and indivisible. The rule does not seem to us capable of a just application to a case of this character. Title is derived from a single conveyance ; and yet the title to the lands of which there is immediate possession is essentially distinct and different from the title to the reversion ; as clearly distinguishable as is the title of the tenant of a particular estate, and the title of the remainder-man; and for all legal purposes, and in legal effect, the parties stand in the relation they would occupy, if the several titles had been derived by several instruments, to distinct, different tracts or parcels of land. In such case, the rule invoked could not be applied, and it is not now capable of application, constraining unwilling tenants into the continuance of a relation’ they are anxious to dissolve, and which may be dissolved as to all the lands they hold by present title, attended with a right of present possession. [206] 6. The usual practice pursued by the court of equity, in making partition, is the issue of a commission to disinterested freeholders, giving them instructions as to the course which they will pursue in assigning the several parts of the lands to be divided. If the parties do not agree upon, and nominate ■commissioners for the appointment of the court, a reference to the register is ordered to ascertain and report the names of suitable persons to be appointed, and his report is open to the exception of either party. The delegation of authority to the register to appoint the commissioners was irregular, and, if it had been objected to, would have been corrected by the chan■cellor. It does not appear that the objection- was made, and the irregularity was thereby waived. If it should happen that the register appoint others than impartial, discreet commissioners, their report would be open to exception, and all injury apprehended from the irregularity could be obviated. Let the decree of' the chancellor be affirmed.