Johnson v. Kelly

80 Ala. 135

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

CLOPTON, J.

The object of the bill is to obtain a decree for the sale of lands to effect partition, on the ground that the same can not be equitably divided. All the defendants are adults, and a decree pro oonfesso on personal service was entered against them. While the jurisdiction of a court of equity to decree a sale of the real estate of infants for partition is settled by the course of decisions in this State, it is equally well settled, that the court is without jurisdiction to decree a sale of the lands of adult tenants for such purpose, without their consent. Delony v. Walker, 9 Por. 497; Wilkinson v. Walker, 74 Ala. 198; Lyon v. Powell, 78 Ala.

It is insisted, that the decree pro oonfesso is a consent. The bill does not aver consent, and none is disclosed by the record. •A decree pro oonfesso is regarded as an admission of the allegations of the bill, which are well pleaded. The defendants are not thereby precluded to appear, and contest the decree on the merits of the bill. The court will only make such decree, as it would have made on the state of the pleadings, had there been no default, and the allegations of the bill had been proved. Code §§ 3824, 3826. McDonald v. Mo. Life Ins. Co., 56 Ala. 468. 1 Dan. Ch. Pl. & Pr. 526. While a decree pro confesso is an admission of the facts alleged, it is not an admission, that the complainant is entitled to equitable relief, unless authorized by the allegations of the bill; and is not a consent that the relief prayed for may be granted.

Affirmed.