Berry Lumber Co. v. Garner

McCLELLAN, O. J. This bill is filed by Minnie Garner and others against the Berry Lumber Company. It avers that complainants and respondents are tenants in common in certain lands, and sets forth the interest of each party. It is further averred that the respondent is in possession of the land and has been for some years, and this is admitted by the answer. And the further averment is made that said “lands cannot’ be equitably divided among the tenants in common aforesaid without a sale thereof.” The prayer is for a sale of the land, and for a division of the proceeds among the tenants; and this relief was decreed. The only point made here against the decree is that there was no evidence that the lands could not be equitably partitioned. There was no evidence on this point. But the answer failed to deny the averment to this effect in the bill. If the lands were sus-’ ceptible of equitable partition, the fact was Avithin the knowledge of the respondent. Its failure to' deny the averment of the bill to the contrary Avas an admission of the truth of that averment dispensing Avith the necessity for evidence. — Grady et al. v. Robinson, 28 Ala. 289; [490] Smilie v. Silers’ Admr., 35 Ala. 88; Moog et ux v. Borrow et al., 101 Ala. 209. Affirmed. Tyson, Simpson and Anderson, J. J,, concurring.