Opinion
6 Div. 946.
April 10, 1924.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Rudulph Smith, of Birmingham, for appellants.
Where the averments of the bill are expressly admitted, the complainant is not required to make proof of such averments. Sims, Ch. Pr. § 498; Land Mortgage Co. v. Vinson, 105 Ala. 389, 17 So. 23; Alex Chandler had the right to compel an accounting in equity from the respondents for his portion of the rents and profits. Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50; Stein v. McGrath, 128 Ala. 182, 30 So. 792. If the applicant's remedy was at law, and not in equity, then the court should not have dismissed the bill, but transferred the same to the law side of the court. Acts 1915, p. 830.
Hayden Hayden, of Birmingham, for appellees.
Before property will be sold for division between tenants in common, it must be alleged and proved that the parties are tenants in common and that the property cannot be quitably divided in kind. Code 1907, § 5222; McEvoy v. Leonard, 89 Ala. 455, 8 So. 40; Kelly v. Deegan, 111 Ala. 156, 20 So. 378. An accounting will not be ordered, where all other equities fail, and where plaintiff is by proof shown not to have any claim for an account due, or where such amount is negligible. 1 C. J. 616; Tecumseh Iron Co. v. Camp, 93 Ala. 572, 9 So. 343.
The certificate shows the appeal was taken by the complainants under the provisions of General Acts 1911, p. 589. There was acceptance of citation by cocomplainant Ollie Jarrett, who "unites in this appeal," and separately assigns error. Hence all the parties in interest are before this court. L. N. R. Co. v. Shikle, 206 Ala. 494, 90 So. 900.
Where the averments of the bill are admitted in answer, proof thereof is dispensed with; that is, the whole answer will be looked to by the court for the denials as well as the admissions. Sims Ch. Pr. § 498; Tait v. American, etc., Co., 132 Ala. 193, 31 So. 623; Land Mortg., etc., Co. v. Vinson, 105 Ala. 389, 17 So. 23; Crawford v. Kirksey, 50 Ala. 590, 598; 2 Dan. Ch. Pr. 978. However, an answer to a bill cannot supply jurisdictional averments omitted, or inject equity into a bill which has none on its own allegations.
The bill must contain the requirements of the statute before the property sought to be made the subject thereof will be required to be sold for division among tenants in common. Code 1907, § 5222; Gen. Acts 1923, p. 659. It must therefore be alleged and proven (1) that the parties were joint owners or tenants in common in the lands sought to be sold for division (Code 1907, § 5222; Gen. Acts 1923, p. 659; Wood v. Barnett, 208 Ala. 295, 94 So. 338; Smith v. Duvall, 201 Ala. 425, 78 So. 803; Kelly v. Deegan, 111 Ala. 152, 20 So. 378; Curlee v. Scott, 207 Ala. 478, 93 So. 393; and (2) that the lands cannot be equitably divided or partitioned in kind. Code 1907, § 5222; Gen. Acts 1923, p. 659, McEvoy v. Leonard, 89 Ala. 455, 8 So. 40; Wood v. Barnett, supra; Alexander v. Livingston, 206 Ala. 186, 89 So. 520; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A.L.R. 23; Sandlin v. Sherrill, 201 Ala. 692, 79 So. 264; Parker v. Robertson, 205 Ala. 434, 88 So. 418; Trucks v. Sessions, 189 Ala. 149, 66 So. 79.
It is insisted by appellants that under the pleading and proof it is shown that the property in controversy was owned by Frank and Rosa Jarrett, both of whom had died several years before the bill was filed; that complainant Alexander Chandler is "a son of one of the three children of Frank and Rosa Jarrett, whose parents were dead, and that the defendants have been in the exclusive possession of the property collecting the rent and profits therefrom for a number of years."
The averments in the first paragraph of the bill admitted by the answer are:
"That your petitioner, Alex Chandler, is a minor, 11 years of age, who resides in the city of Birmingham, Ala., and who comes into court and sues by his next friend, Andrew James, said minors [minor's] parents being dead, having no next of kin; that your petitioner, Ollie Jarrett, is a resident citizen of Chicago, Ill., and over the age of 21 years."
It is not averred that the complainant Chandler's mother, Sallie Jarrett Smith, died intestate, or that there was no administration of that estate pending or determined. There is conflict in the evidence as to the paternity of said complainant; and other than the admission in the answer of the averment in the bill, "said minor's parents being dead," the evidence does not show the death of the husband of Sallie Jarrett Smith. There is also confusion or conflict in the evidence as to whether Bessie Jarrett was married at the date the mortgage in question was made; and the evidence does not show that she died intestate. There were no administrators or administrators ad litem to represent the estates of said decedents as necessary parties (Winsett v. Winsett, 203 Ala. 373, 377, 83 So. 117); there being no averment and proof of the nonexistence of debts, and therefore no necessity for an administration of said estates. The fact of the joint ownership is denied, and the question whether the property cannot be equitably divided or partitioned is not shown otherwise than by inference from the nature and character of the property, it being a tract of land in Jefferson county, Ala., with a three-room house thereon worth about $1,000.
It is true, in a proper case, the court could grant relief to either of complainants in equity, as the justice of the case might require, etc. Teal v. Pleasant Grove Local Union, 200 Ala. 25, 75 So. 335; Smith v. Duvall, 201 Ala. 425, 78 So. 803; King Lbr. Co. v. Spragner, 176 Ala. 564, 58 So. 920. That is to say, only when all necessary parties are before the court to authorize the procedure to such final decree, as to such parties affected by the decree, may the decree be rendered. Winsett v. Winsett, supra; Hodge v. Joy, 207 Ala. 198, 92 So. 171.
We have indicated that the final decree, without prejudice to the rights of Alex Chandler, dismissing the bill was not laid in error.
We find no error as to appellant Ollie Jarrett. She had not sought to support her contention by her testimony. A case should be fully prepared before submission for final decree; a complainant should not speculate on the result, and by motion for rehearing seek to be given opportunity to be again heard. While it would be agreeable to complainant Ollie Jarrett to have modified the decree as to her, yet it would be unjust to respondents to do so. The testimony was taken ore tenus, and the rule obtains in a court of equity. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Ray v. Watkins, 203 Ala. 683, 85 So. 25.
The decree is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.