Summary
In Anderson v. Anderson, 281 Ala. 574, 576, 206 So.2d 586, we affirmed the action of the trial court allotting certain lands to complainants and ordering the remainder of the land sold for division.
Summary of this case from Hicks v. HicksOpinion
7 Div. 758.
January 11, 1968.
Appeal from the Circuit Court, Etowah County, A. B. Cunningham, J.
Robt. H. Taylor and Copeland Copeland, Gadsden, for appellants.
A tenant in common has an absolute right to have lands sold for division in equity, if said lands are such that they cannot be fairly and equitably partitioned in kind. Code 1940, Tit. 47, § 186; Howard v. Harrell, 275 Ala. 422, 155 So.2d 525; Leonard v. Meadows, 264 Ala. 484, 88 So.2d 775. In determining whether a tract of land is susceptible to partition in kind, the court looks to the nature, topography, features and use of the land in question as well as value and extent of partition. Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Howard v. Harrell, supra; Meador v. Meador, 255 Ala. 688, 53 So.2d 546. Before a court of equity can allot a parcel of land to one tenant in common and order the rest sold for division, two affirmative conditions must appear:
Said joint tenant must have made improvements to the property, or there is some other special equitable reason for allotting the portion to him, and this procedure would not affect the salable value of the balance. Hall v. Hall, 250 Ala. 702, 35 So.2d 681; Washington v. Phillips, 257 Ala. 625, 60 So.2d 337; Dillard v. Alexander, 277 Ala. 202, 168 So.2d 233.
Roy D. McCord and J. A. Hornsby, Gadsden, for appellees.
A court of equity may order that land be partitioned in kind among tenants in common, if same can be accomplished and would promote the best interests of the parties. Code 1940, Tit. 47, § 190. To justify a sale in equity, the situation must be such as the land cannot be equitably divided without a sale for that purpose. It must be partitioned without a sale, if that procedure can be done equitably. Smith v. Hill, 168 Ala. 317, 52 So. 949; Compton v. Simmons, 223 Ala. 352, 135 So. 570. In partition proceeding, court may allot a part of land to one tenant if he has improved it, or there is some other equitable reason for doing so, and if to do so would not affect salable value of balance. Code 1940, Tit. 47, §§ 186, 190, 210; Hall v. Hall, 250 Ala. 702, 35 So.2d 681.
The appellees filed a bill for partition in kind of 160 acres of land lying adjacent to the City of Gadsden and traversed by U.S. Highway 411, which diagonally crosses and divides in half the south forty of the land.
All of the tenants in common are parties to this litigation and consist of five. They took title to the land from a common ancestor.
The respondents to the original bill filed an answer and cross bill denying that the property could be divided in kind and asked for a sale of the entire property and division of the proceeds among the parties.
The court heard a great deal of evidence, made a view of the property with the consent of the parties and concluded that the complainants were entitled to have set aside and carved out of the entire portion of land involved their share "lying south of the U.S. Highway No. 411 without affecting the market value of the remaining lands". The remainder of the property was ordered sold for division.
It is the contention of appellants that the court erred in allotting a parcel of the land to appellees (one tenant in common), contending that before the court may do so, it must be shown that the cotenant has made improvements on the property, or that there is some other special equitable reason for allotting the portion to him, and that this procedure would not affect the saleable value of the balance of the land. This is a correct statement of the law as it exists in Alabama. Hall v. Hall, 250 Ala. 702, 35 So.2d 681. The contention made by appellants is that the court erred in finding in this case that the complainants had established a "special equitable reason" for having the portion allotted to them in kind.
Our cases on this point hold that "each case must be judged on its own merits". Washington v. Phillips, 257 Ala. 625, 60 So.2d 337. The trial court here heard the evidence ore tenus. It is well settled that his findings are entitled to the usual presumption of correctness. In addition the court physically viewed the property with the consent of the parties. It concluded that the complainants were entitled to have a portion of the property allotted to them in kind. The evidence is supportive of his conclusions. In Hall v. Hall, supra, a similar case, we held:
"We believe that the broad powers given by statute to a court of equity to be pursued on equitable practices would justify the court in allotting a part of the land to one tenant in common if he has improved it or there is some other special equitable reason for doing so, and if to do so would not affect the saleable value of the balance, and that the balance could then be sold if it could not be equitably divided without a sale."
Here the court found that the complainants had shown a special equitable reason for having the share carved out and further found that by so doing, the saleable value of the balance was not affected. It is not argued that the court erred in failing to partition the whole property in kind.
We have carefully reviewed the evidence and have concluded that in light of the presumption of correctness attending the court's finding on facts heard ore tenus we cannot reverse.
Affirmed.
LAWSON, MERRILL and HARWOOD, JJ., concur.