Lewis v. Dunlap

108 So. 517, 214 Ala. 577, 1926 Ala. LEXIS 94

• Court: Supreme Court of Alabama
• Decided: May 13, 1926
• Docket: 6 Div. 583.
• Status: Published

Opinion

ANDERSON, C. J.

This bill is by a minor through his next friend and father, who also sues in his own behalf as well; the two claiming to own an undivided one-fourth interest in the land sought to be sold for division. The father claiming to own a life estate and the infant son the reversion, this constitutes a fee simple by a combination of their interest with a right of possession as to their one-fourth interest and which differentiates this case from that of Chapman v. York, 208 Ala. 274, 94 So. 90, and the line of authorities there cited and followed.

The bill plainly shows that these appellants own together the other three-fourths interest in the land and is not wanting in adversary parties, as in the ease of Dickinson v. Jordan, 210 Ala. 602, 98 So. 886. True, the prayer of the bill seeks to carve out of the proceeds of the sale the value of the life estate of the complainant H. O. Dunlap in his son’s one-fourth interest, but that is a matter with which these appellants are not concerned and which can be regulated by the court in a final distribution. Moreover, the demurrer goes to the bill as a whole. Upon either theory the complainants or the minor have such a present interest in the land as would entitle them, one or both, to a partition in kind or a sale in lieu thereof if the land cannot be equitably divided. As above set forth, their combined interest gives them the right to maintain the bill. On the other hand, if the minor derives title under the Homestead Law, he would still have such a possessory right as would enable • him to maintain the bill.

The trial court did not err in overruling the demurrer to the bill as amended, and the decree of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.