P. Almon, i Judge. Suit by James E. Wilson against John T. Ezzell. From decree for complainant, respondent appeals. Bill by ¡appellee against the appellant seeking a. sale for partition of a certain tract of land therein described in Franklin county, Ala., consisting of about 428 acres; ¡it being alleged that the complainant and respondent owned the said land as tenants in common, and that the same ¡could not be equitably divided without a sale thereof.
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1917-11-29
How this case has been cited
Cited by 5 later decisions — most recently January 1957
5 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
As to whether or not the land here sought to be sold for division, described in the original bill, could be equitably partitioned between the joint owners thereof without a sale, was one of the closely contested questions of fact presented by the evidence. No good purpose will be served by a discussion of the testimony. A brief outline of the character of the testimony offered on this question appears in the statement of the case, and will suffice as an indication of the general character thereof.
¶3
[2]
The lands described in paragraph 5 of the cross-bill are situated in Colbert county, Ala., and under the decision of this court in Clark v. Smith, 191 Ala. 166, 67 South. 1000, jurisdiction thereof for this purpose, even by cross-bill, in this suit which was in Franklin county, may be seriously questioned; but aside from this, and without a determination thereof, the evidence is without dispute that the title to the 80 acres of land described was in complainant to the original bill. Co-tenancy is an indispensable element of each compulsory sale for division under our statutes. The cross-bill averred the cotenancy and was. not sustained by the proof. Kelly v. Deegan, 111 Ala. 152, 20 South. 378; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 South. 880.
¶4
If it be conceded, without deciding, that the matters set up in paragraph 6 of the cross-bill were proper here to be considered, 'yet we agree with the court below in the conclusion rea.ched, that these matters had been finally adjudged and settled between the parties prior to the filing of the bill in this cause.
¶5
We conclude that the decree of the court below is correct, and the same will, accordingly, be here affirmed.
