Letcher v. Allen

60 So. 828, 180 Ala. 254, 1913 Ala. LEXIS 347

Opinion

ANDERSON, J.

Under the terms of the will of Mrs. Allen, her son, David C. Allen, took a life estate to an undivided one-eighth interest in the land, with a remainder to his children who should survive him; and a court of equity has jurisdiction to partition the land in kind so as to give the said David C. Allen his part, and in which his children have a remainder, and to fasten their title to it and allot to the others, who have a fee, their seven-eighths interest jointly, if they so elect, and it can be so partitioned equitably. “Two or more tenants in common may unite in a bill against another cotenant, and may jointly elect to consider their several moieties as one moiety, and to have it set apart to them as one undivided fractional share of the whole.”—Smith v. Hill, 168 Ala. 317, 52 South. 949; Donnor v. Quartermas, 90 Ala. 164, 8 South. 715, 24 Am. St. Rep. 778; Freeman on Cotenancy, § 459; 30 Cyc. 240-261.

The common-law rule as to partition has been considerably enlarged and extended by our statute, and we have many authorities holding that, when the partition is sought by one having the right to compel same, all interests can be brought in, whether in praesenti. or reversion. Of course, a reversioner with no right of posession, or to the present use and enjoyment, cannot maintain a bill as against those who are entitled to the present and entire use and enjoyment of the land. “On the other hand, we find the general rule to be, as laid down by courts and text-writers, That a remainderman or reversioner’ may be made party defendant in an action for partition.”—Fies v. Rosser, 162 Ala. 504, 50 South. 287, 136 Am. St. Rep. 57; Gayle v. Johnson, 80 Ala. 395; McQueen v. Turner, 91 Ala. 273, 8 South. 863; Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53. The bill in this case is filed by those who have a present estate in the lands and the present possession and right of enjoyment, against their cotenant, D. C. Allen, and his children, who have a remainder in his interest.

Whether the children of I). C. Allen have a vested remainder or a contingent one, dependent upon surviving their father, and that only the survivor will take, under the influence of Smaw v. Young, 109 Ala. 528, 20 South. 370, is a. question not necessary to now decide. The right to proceed in equity against contingent remaindermen for partition in kind is discussed and sanctioned, independent of the New York statute, in the cases of Mead v. Mitchell, 17 N. Y. 210, 72 Am. Dec. ; Brevoort v. Brevoort, 70 N. Y. 136. Contingent remaindermen, or persons to take under an executory devise, who may hereafter come into being, are bound by the judgment .or decree as being virtually represented by the parties to the action, and in whom the present estate is vested. So it may be conceded that, under the terms of Mrs. Allen’s will, it is possible for future-born children of D. C. Allen to have a contingent remainder in his interest, to become vested upon his death and in case they survive him ; hut they are virtually represented in the present action, not only by the said D. C. Allen, but by the guardian ad litem of the same class as would be the said unborn children.

Finding no error in the decree of the city court, the same is affirmed.

Affirmed.

Dowdell, O. J., and Mayfield and de Graffenried, JJ., concur.