Trucks v. Sessions

66 So. 79, 189 Ala. 149, 1914 Ala. LEXIS 127

• Court: Supreme Court of Alabama
• Decided: June 30, 1914
• Status: Published

Opinion

McCLELLAN, J.

Bill praying sale of land for division among joint owners. It appears from the bill that H. Y. Sessions, W. M. Sessions, Mary Taylor, Jane Drury, and Sarah L. Trucks each own an undivided one-twelfth interest therein. The minors are among the complainants, and sue by their next friend, H. V. Sessions.

By the act approved August 25, 1909 (Acts Sp. Sess. 1909, p. 124), amendatory of section 5231 of the Code of 1907, it is provided that: “The chancery court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of complainant or sets up adverse possession or not; and the court in exercising its jurisdiction shall proóeed according to its own practices.” Italics supplied.)

The necessary effect of the italicized provision of the amendatory act was to make superior, serviceable, and controlling the practices of courts of equity in exercising the power defined in the act, and to exempt a court of equity from obligation to observe statutory prescriptions in respect of the effectual exercise of the jurisdiction declared. As is familiar, infants may sue, in equity as at law, by next friend, who is an officer of the court.—1 Dan. Ch. Prac. (6th Am. Ed.) p. 68 et seq.; T. C. & I. Co. v. Hayes, 97 Ala. 201, 209, 210, 12 South. 98; West v. West, 90 Ala. 460, 461, 7 South. 630. See Swope v. Swope, 173 Ala. 157, 164-166, 170-172, 55 South. 418, Ann. Cas. 1914A, 937. Hence the references in Code, §§ 5222 and 5224, to proceedings in the nature under view, with respect to guardians of infants and persons of unsound mind, do not, of course, qualify the italicized provision of the subsequent amendatory act of 1909, quoted above. Whether H. V. Sessions should continue to serve as next friend oí the infants, with whom he is averred to be a joint owner of the land, is an inquiry not raised by, or presented on, this appeal.

There is no ground of demurrer pointing the argued objection to the bill that it omits to aver the location of the land in Bibb county, in which chancery district the bill is filed. General grounds of demurrer will not suffice to raise such an objection to a bill, unless it appears from tbe face of tbe bill that tbe land is without the jurisdiction of the court. The cases cited on brief in this connection were instances where the Avant of power or jurisdiction appeared from the face of the bill.

The eighteenth ground of demurrer erroneously assumed that the bill sIioavs the land to be located outside of Bibb county. This it does not do. The bill should be amended so as to shoAV that the land is, in whole or in part, in Bibb county.

The bill’s averments, general as well as particular, shoAV the improbability of any practicable method for a partition of the land, Avithout a sale thereof.—Sheffield C. & I. Co. v. Ala. Fuel & Iron Co., 185 Ala. 50, 64 South. 67. These averments make a much stronger case for necessity to sell, to affect, division, than was made by the bills in Smith v. Witcher, 180 Ala. 102, 60 South. 391. If the general allegation of necessity to sell in order to effect division was taken as reiterated by the particular averments to that end, still the chancellor did not err in affirming the sufficiency of the bill’s averments to state a case of necessity to sell for division. There is no merit in the demurrer, so the decree overruling it must be affirmed.

Affirmed.

Anderson, C. J., and Sayre. Somerville, and de Graefenried, JJ., concur.