Opinion
8 Div. 956.
November 15, 1917. Rehearing Denied January 24, 1918.
Appeal from Circuit Court, Madison County; R. C. Brickell, Judge.
W. R. Walker, of Athens, for appellants. Addison White and Spragins Speake, all of Huntsville, for appellees.
It is urgently insisted by counsel for appellant that one holding a mortgage on the interest of one tenant in common cannot at one and the same time maintain a bill to foreclose the mortgage, and also to sell the land for division among the tenants in common. Much of the argument is addressed to this point, citing, among other authorities, Hawes v. Nason, 111 Me. 193, 88 A. 538, Ann. Cas. 1915D, 1095, and note, 67 Am. Dec. 708; Phelps v. Palmer, 15 Gray (Mass.) 499, 77 Am. Dec. 378; Bush v. Thomas, 172 Ala. 77, 55 So. 622.
We are of the opinion, however, that the following cases of this court determine the question adversely to the contention of appellants' counsel, to the effect that a court of equity in such a case having assumed jurisdiction for the purpose of foreclosing the mortgage will proceed to a final disposition of the cause and decree a sale of lands for division. Lyon v. Powell, 78 Ala. 351; Nelson v. Kelly, 91 Ala. 569, 8 So. 690; Hines v. Cha. Bldg. and Mfg. Co., 115 Ala. 637, 22 So. 160. Nor are we of the opinion that the case of Bush v. Thomas, supra, is at all at variance with this conclusion. We consider the question as settled by the authorities above cited, which have, in a sense, become a rule of property, and from which we do not think it now advisable to depart.
The lands involved consist of two tracts, one described in paragraph 3 of the bill, known as the homestead tract, the other set out in paragraph 4 of the bill, known as the Donegan tract. The bill shows, and it is established without dispute by the proof, that the land known as the Donegan tract has been sold for division among the heirs under the decree of the chancery court, as disclosed by the exhibits to the bill, and as set forth in the statement of the case. This Donegan tract was disposed of in the fourth clause of the will of John Jordan, deceased. It need not be here determined as to the separate interests of the respective parties in this land under the will. If it be conceded there were contingent remaindermen, and that a sale of the property involved the setting apart of interest in reversion or remainder under the decisions of this court, this would not stand in the way of a sale of the land for division. Letcher v. Allen, 180 Ala. 254, 60 So. 828; Culley v. Elford, 187 Ala. 165, 65 So. 381; Wheat v. Wheat, 190 Ala. 461, 67 So. 417. There was no outstanding life interest in the entire tract, but there was a relationship of cotenancy among the owners as to the same, and the chancery court had jurisdiction in the premises. Fitts v. Craddock, 144 Ala. 437, 39 So. 506, 113 Am. St. Rep. 53.
The court having jurisdiction, and nothing appearing to the contrary, the regularity of the proceedings will be assumed, as well as that the court properly protected the interest of all parties. According to the averments of the bill, by virtue of the decree of sale by the chancery court on May 1, 1911, Sarah E. Jordan, Lucile Allen, Ned Jordan, and Lorna Bullard became the joint owners of the Donegan tract holding the same as tenants in common, share and share alike. We therefore find no objection to the decree foreclosing the mortgage as to the interest of Sarah E. Jordan and Lucile Allen in the Donegan tract, and ordering a sale of the same for division among the tenants in common.
The land referred to as the homestead tract, described in the third paragraph of the bill, and disposed of in the second clause of the will of John Jordan, deceased, has never been sold for division, and the case requires a construction of this clause of the will. It is insisted by counsel for appellees that, notwithstanding the testator, in the first sentence of said clause, expressly gave to his wife. Sarah E. Jordan, this land "during her natural life," yet that the concluding sentence of said clause, which is as follows: "It is my will that said children shall share equally with my said wife in the rents and benefits of said lands during the life of my said wife — cuts down the gift of the wife so as to include the children as tenants in common of a life estate with the widow. This argument is rested upon the well-known rule that a gift of the rents, incomes and profits from land, without other disposition of the property itself, for a fixed period, as for life, is tantamount and will be construed as the devise of the land itself for such period. Scruggs v. Yancey, 188 Ala. 682, 66 So. 23; Stein v. Gordon, 92 Ala. 532, 9 So. 741. While this rule is well recognized, yet it must be remembered that it rests upon implication and finds application only in those cases where the testator has not made other disposition of the property.
There is another well-recognized rule which should be kept steadily in mind that a clear gift is not to be cut down by anything which does not, with reasonable certainty, indicate an intention to cut it down. O'Connell v. O'Connell, 196 Ala. 224, 72 So. 81.
The second clause of the will made an explicit and direct gift to the wife of the homestead tract, "consisting of 428 acres of land, to have and to hold during her natural life, and at her death to go to our four children." Such a clear gift for life to the widow is not to be cut down unless the language with reasonable certainty so indicates. We are of the opinion that by this clause of the will the testator intended that his widow should have full dominion and control of the homestead tract during her life, and while the children, by the concluding sentence of the clause, might have such an interest in the rents and profits of the place as to create a charge thereon for that purpose, yet it does not appear with reasonable certainty that by such gift to them the testator intended to cut down the life estate to the widow and deprive her of the right of full dominion and control over the land.
We are therefore of the opinion that the gift to the widow of the life estate must stand. The mortgage as to this land, so far as the widow is concerned, only conveys a life estate. As between the widow and the other devisees, there is therefore no relationship of tenants in common.
Under the recent holding of this court in Cobb v. Frink, 75 So. 939, the widow could not maintain a bill for the sale of the land for division. We are therefore of the opinion that under this construction of the second clause of the will, and under the authority of Cobb v. Frink, supra, the complainants have shown no right to a sale of the land for division described in the third paragraph of the bill, and known as the homestead tract.
200 Ala. 191.
We therefore conclude that the court was in error in ordering a sale of this land for division, and that the assignments of error taking this point are well made, and must result in a reversal of the cause.
In so far as the decree confirmed the sale of the Donegan tract, it will be here affirmed. As, however, in the decree, the disposition of the interests of the parties and the proceeds of the sale as to both tracts were so intermingled, we are of the opinion that the decree should be reversed in all respects, except as to confirmation of the sale of the Donegan tract, and the cause remanded, that the case may be proceeded with and partly reset in the light of this opinion. The costs of this appeal will be taxed one-half against the appellants and one-half to be paid by appellees.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.