Sherer v. Garrison

McCLELLAN, J. In Hillens v. Brinsfield, 108 Ala. 605, decided at the present .term, it wTas held, overruling Johnson, v. Ray, 67 Ala. 603; McCorkle v. Rhea, 75 Ala. 213; Ballard v. Johns, 80 Ala. 32, and Wolffe v. Loeb, 98 Ala. 426, so far as those cases bore on the point, that section 3251 of the Code, providing that no division or partition of property could he made under the article of which that section was apart, “when an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners, or of the judge of probate,” was confined in its operation to division or partition of property in kind or specie, and had no bearing upon the sale of property for the purpose of dividing or distributing the proceeds thereof among joint owners or tenants in common. The present bill seeks a sale for division or [232] distribution among tenants in common ; it is not a bill for a division or partition of the land itself. The adverse claim of title of Consada Garrison, alleged to be one of the tenants in common claiming the land in severalty, which the bill discloses, is not, therefore, a bar to the relief prayed. Notwithstanding that claim, and its being shown by the complainant, the bill, so far as this point goes, has equity. On motion to dismiss a bill for want of equity, all amendable defects in its averments must be considered as having been cured by amendment. Hence the decree dismissing this bill cannot be supported on the ground that the interest of one of the two complainants does not' appear, or even that it does appear affirmatively that one of them has no interest, nor upon the ground that the necessity for sale for division is stated as a conclusion of the pleader, instead of being shown by the averment of facts as a basis of a conclusion to be drawn by the court. Each of these was an amendable defect. The theory that the bill shows complainant’s hands are unclean, or that there was an equity upon him to be performed as a condition precedent to his right to come into equity for relief, is untenable. It is shown that he is in sole possession of the land, and that he resisted an action of statutory ejectment brought by Consada Garrison for the recovery of the land, and all interests in it, in severalty, and, being cast in that action as to all interests in the land because of the invalidity of the deed under which he claimed as a tenant in common, in that, among other reasons, it was executed alone by the husband of the tenant to whose interest he claimed to have succeeded, he now, having meantime received a conveyance by said tenant herself, the husband having died, sets up this title, which, on the averments of the bill, is a perfectly good one, and asks that the execution of the writ of possession issued on Consada Garrison’s said judgment be enjoined, to the end that he may remain, pending this suit, in possession as a tenant in common, as he clearly has a right to do, and that the land be sold for division between the several tenants, including himself — relief which, as we have seen, he is entitled to, notwithstanding Consada Garrison’s adverse claim to the land in severalty. It was nob incumbent on him to surrender possession, or to submit to ouster,under these [233] circumstances, as a condition precedent to the assertion of his right to a sale for division, on the principle that he who seeks equity must do equity. Equity required of him no more than to admit his co-tenants in common into possession in common ; and we do not understand from the bill that such right of common possession is, or has ever been denied to the other tenants. The recovery of Consada Garrison in the action of ejectment did not establish her asserted title in severalty, and certainly did not cut off the subsequently acquired title of the complainants resting on-the deed of Mrs. Jones, one of the tenants in common. The decree of the chancery courtis reversed. A decree will be here entered overruling the motions to dissolve the injunction and to dismiss the bill; and the cause will be remanded.