Garnett Smelting & Development Co. v. Watts

DOWDELL, J. The purpose of the bill is for a sale of all “saw timber” on the land described for partition and division among alleged joint owners. Demurrers were interposed to the bill as amended, and also, a motion was made to dismiss the same for want of equity. From the decree of the court overruling the demurrers and motion this appeal is prosecuted. [456] The bill as amended is uncertain and defective in its averments as to the respective interests of the parties. In the fourth paragraph .of the bill it is alleged that two of the complainants, J. H. Watts and T. N. Watts, each own an undivided 17-216 interest in the saw timber, but subject to a dower interest of the complainant, Mrs. M. E. Watts, and that the respondent owns 182-216 interest, but whether or not subject to any claim of dower it is not averred. From the averments of the fifth paragraph, wherein the pleader undertakes to show how complainants and respondent, respectively, deraigned title, it cannot be told what is the interest of each. There is an attempted assertion of claim of dower to the 2-8 interest which was mortgaged by Hollinsworth Watts, the husband and ancestor, during his life, to Merritt Street, which mortgage was foreclosed in chancery some time prior to 1896; the said I-Iollinsworth Watts having died in 1885. It does not appear that any steps were ever taken by the widow within the three years after her dower right became consummate by the death of her husband, to have dower set apart, and failing to do this, the right of dower as to such 2-3 interest was lost. — Code of 1896, § 1528. But in section 4 of the bill it is alleged that the said dower interest is a life estate consisting of one-third part of said saw timber. The court cannot tell from the averments of the bill, if confessed, the extent of such dower interest, and could not render a decree ascertaining the extent of it, without testimony. In respect to the interest of J. H. Watts and T. N. Watts, it is averred in section 4 that they each own an undivided 17-216 interest subject to 1-3 dower interest for the' life of the widow in the whole; and in the conclusion of section 5, they are each alleged to have owned at the time of the conveyance to R. L. Ivey 17-72 part, and the exhibit giving a copy of the deed to Ivey shows that J. H. Watts and T. N. Watts, reserve all their interests in the saw timber on the land conveyed by said deed, which under the averments of the bill may have been 17-72 or 17-216 each. It thus does not appear that the respective interests of the par [457] ties to the suit are in the saw timber. The bill was subject to the demurrer directed to these defects. The vital question goes to the right of Mrs. M. E. Watts to maintain the bill. The subject matter sought to be sold for a division is the “saw timber” on certain described land. The alleged title and interest of Mrs. Watts, is the claim by right of dower. The bill shows that Mrs. M. E. Watts by deed conveyed her life estate in the land to R. L. Ivey, but with the “reservation” or perhaps, more properly speaking with the exception, of her interest in the “saw timber” on the land. The only interest Mrs. Watts had by right of her dower estate in the land, in the timber growing on the same, was such as was useful and necessary to the proper enjoyment of her life estate in the land. As such life tenant, her right to use the timber growing on the land was for house, fire, or fence bote and the like, beyond this any cutting or destruction of the timber by her would have constituted waste and for which she could have been enjoined by the reversioner or remainderman.—Alexander v. Fisher, 7 Ala. 514. Before she conveyed her life or dower estate in the land to Ivey, she had no interest in the timber of the land severable from her life estate in the land. She had no right to sell the “saw timber” from the land as such life tenant. Nor could she cut said “saw timber” otherwise than for proper and reasonable uses in the enjoyment of her life estate, such as those mentioned above: ■ The “reservation” in her deed to Ivey of the “saw timber” on the land conveyed, reserved to her nothing as against the reversioner. Through Ivey the respondent derived its title to the land. The aver-ments of the bill show that the fee in the land described was vested in the defendant with the “reservation” in the conveyances of Mrs. M. E. Watts, J. JEL Watts, and T. N. Watts of their interest in the “saw timber” in the land described. As stated above, the “reservation” in the deed of Mrs. Watts of the “saw timber” reserved to her nothing. It is evident, that she could not, if suing alone, maintain the bill. It is a well settled rule that all the complainants must recover or none can.—Richter v. Noll, 128 Ala. 198. [458] The decree overruling the demurrer will be reversed and a decree will be bere rendered sustaining the demurrer, and the cause remanded with leave to the complainants to amend their bill. Reversed, rendered and remanded.