Opinion
SC 1600.
August 13, 1976.
Appeal from the Circuit Court, Shelby County, James H. Sharbutt, J.
Harry L. Hopkins and Carolyn B. Nelson, Birmingham, for appellants.
Frank Ellis, Jr. and Conrad M. Fowler, Jr., Columbiana, for appellees.
The trial court ordered a 60-acre tract, owned jointly by 18 individuals as tenants in common, sold for division on the ground that the land could not be equitably divided in kind. We affirm.
The plaintiffs had the burden to prove that a fair and equitable partition of the land could not be made. We find that they sustained their burden by proof, especially in view of the presumption in favor of the trial court's findings since he saw and heard the witnesses. Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951).
The record shows that attempts at division were made before the suit was filed, without success. Also, the nature of the terrain, the location of improvements and roads on the land and the number of interests — some owning one-fifth, others, one-fortieth — are facts which support the trial court's finding that equitable division in kind could not be accomplished.
AFFIRMED.
FAULKNER, SHORES, EMBRY and BEATTY, JJ., concur.