Street v. Watts

81 So. 564, 202 Ala. 622, 1919 Ala. LEXIS 333

• Court: Supreme Court of Alabama
• Decided: April 10, 1919
• Docket: 7 Div. 995.
• Status: Published

Opinion

MAYFIELD, J.

The bill in this ease is a hybrid. It is not easy to classify, or correctly name it. It seeks several different kinds of relief. It seeks a sale for distribution, but is defective or lacking as for this purpose, in that it alleges no tenancy in common.

[1] If its allegations be true, complainant owns the entire reversion; while one of the respondents owns only an estate for life; that is, a dower interest in the land. There is no tenancy in common between them, one is a tenant for life only, while the other is a reversioner or remainderman of the whole.

The case is not brought within the rule announced in Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53, or Code, § 5231, because no tenancy in common is shown. The tenancies alleged are in severalty, not in common; each, of course, has an interest in the same land, but not in common; but in different estates, one for life, the other in remainder. In Fitts v. Craddock, supra, complainant was a tenant in common with Craddock, both as to the remainder, and owned all the life estate. The relation of tenants in common was there shown to exist. This distinction was pointed out by this court in the case of Fies v. Rosser, 162 Ala. 504, 50 South. 287, 136 Am. St. Rep. 57; Hollis v. Watkins, 181 Ala. 248, 61 South. 893; Shannon v. Ogletree, 200 Ala. 539, 76 South. 865; Cobb v. Frink, 200 Ala. 191, 75 South. 939; Jordan v. Walker, 201 Ala. 248, 77 South. 838.

[2] The bill also seeks to quiet and determine title. It is fatally defective in this aspect, because it does not allege possession in complainant. It also seeks to review and reform a decree of the chancery court rendered more than 20 years ago, and is fatally defective as a bill of review, or a bill in the nature thereof, for many reasons. As > to this, the bill shows affirmatively on its face that it is barred by laches and by the rule of prescription.

Appellant claims that it is a bill to sell land for partition and distribution among tenants in common, and seeks the other relief as incidental to the main equity. We have shown that it has no main equity as for partition, and hence no relief could be had which is sought as merely incidental to the main equity.

[3] The respondent, appellee here, contends that the main attempted equity is to correct a former decree and sale of lands in a court of equity, and hence is intended as a bill of review or in the nature' thereof. If so, of course, it is without equity when filed nearly 40 years after the final decree and sale thereunder. The amended bill in this respect gave it no equity. The fact that complainant did not know of the matters -of which he complains until a year before the filing of the bill adds nothing to the equity. The matters complained of were of record, and, moreover, the right to so correct, if it ever existed, so far as the bill alleges, was lost before1 this complainant ever acquired any interest in the subject-matter.

We find no error in the decree of the trial court, and the decree is in all things affirmed.

Affirmed.

ANDERSON, O. X, and SOMERVILLE and THOMAS, JJ., concur.