Cates v. Johnson

McOLELLAN, J. This bill was filed by Benjamin P. Johnson and others against William Cates and others, all the parties being tenants in common in a certain tract of land, for a sale thereof for division. Cates alone answered j admitting the tenancy in common, but denying the alleged necessity for a sale. The decree granted the relief prayed, and Cates alone, and in his own name only, prosecutes his appeal from that decree, and assigns error in this court. One assignment of. error is that the “court erred in proceeding to a final decree in the cause without the defendants Benjamin Johnson, James Johnson, K. Anne Hester and Joe Hester being before the court.” On this state of case, this assignment will not be considered. If the matter complained of constituted error, the appellant has no concern therewith, and the parties who were not brought before the court below are unaffected by the decree. — McDowell, Admr. v. Jones, Admr., 58 Ala. 25, 36; Walker v. Jones, 23 Ala. 448; 1 Brick. Dig. pp. 777, et seq. The case made by the bill was a proper one for the exercise of the chancery jurisdiction invoked. — Ward v. Corbett, 72 Ala. 438. The complainants, adult owners in common of the land, having averred facts showing the impracticability of partition without sale, and prayed a sale for division [128] among all the owners, it was not necessary for-them to show that such sale would be to the interest of the owners. — Coker v. Pitts, 37 Ala. 692; Fennell v. Tucker, 49 Ala. 453, 459. Nor will the fact that inconvenience or injury will result, or mischief be entailed on the property, or that a division or sale may. be embarrassed by difficulties, deprive such complainant of the right to demand a partition or a'sale for division, as the case m.a,y require. Partition or sale is a matter of right. — Gore v. Dickinson, 98 Ala. 363. We concur with the Chancellor that the evidence shows the impracticability of partition in this case, and a consequent necessity for the sale prayed by the bill. No exceptions were taken to the report of the sale as made by the Register, and the Chancellor did not err in confirming it, though the amount for which the land sold may have been disproportionate to its value. The decree of Chancery Court must be affirmed.