Jordan v. Farrow

130 Ala. 428

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

TYSON, J.

It seems to us too clear for disputation that counsel fees incurred by a complainant, cannot be allowed independent of a statute authorizing such al-Iowa nee, out of the proceeds of lands sold for partition by the chancery court among joint owners.—Foster v. Foster, 126 Ala. 257; Strong v. Taylor, 82 Ala. 213; Grimball v. Cruse, 70 Ala. 534.

Section 3183 of the Code is relied upon as authorizing the allowance made in this case. ’Conceding, without deciding it, that this section is applicable to proceedings in the chancery court authorized by section 3187 of the Code, there is nothing in it which confers upon the commissioner the right to pay to complainant or petitioner any expense incurred by him or her. The only liabilities he is authorized to discharge are the costs and expenses attending the sale including his commissions. These costs and expenses are such as have been incurred by him. The whole purpose of the enactment is to relieve the commissioner of all liabilities which he may have been bound to assume in order to make the property offered by him for sale bring its fair market value and to compensate him for bis services.

The decretal order allowing the counsel fees is reversed and annulled, and a decree will be here rendered dismissing the petition.

Reversed and rendered.