Opinion
6 Div. 404.
December 22, 1921.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Erle Pettus and J. B. Aird, Jr., both of Birmingham, for appellant.
The bill is not sufficient as a bill for division. Section 5231, Code 1907; 75 Ala. 68. No account is taken of the widow's dower interest. Sections 3812 and 3813, Code 1907. The homestead cannot be sold for division, and the bill shows this to be a homestead. 101 Ala. 183, 13 So. 147; 103 Ala. 488, 15 So. 823, 49 Am. St. Rep. 53.
J. S. McLendon, of Birmingham, for appellee.
The bill contained equity. 189 Ala. 149, 66 So. 79; 187 Ala. 165, 65 So. 381; section 5231, Code 1907, as amended; Acts 1909, p. 124. The lands of husband and wife may be sold for division. 101 Ala. 183, 13 So. 147; 103 Ala. 488, 15 So. 823, 49 Am. St. Rep. 53. The bill sufficiently shows that the lands cannot be equitably divided. 180 Ala. 102, 60 So. 391; 89 Ala. 455, 8 So. 40.
It is well settled by the decisions of this court that one joint owner of land may file a bill in equity for a sale of same for division when the same cannot be fairly partitioned in kind between the respective owners, notwithstanding the owners may be husband and wife. Donegan v. Donegan, 103 Ala. 488, 15 So. 823, 49 Am. St. Rep. 53. Such a bill, however, cannot be maintained by the husband against the wife, over her objection, when the land sought to be sold constitutes the homestead. Mitchell v. Mitchell, 101, Ala. 183, 13 So. 147. The last part of paragraph 3 of the bill charges that the land in question was not used as a homestead at the time of filing said bill, and this averment was neither eliminated nor contradicted by the amendment to said bill.
Paragraph 4 of the bill, before and after amendment, charges that the said land cannot be equitably divided, and, while the reasons given therefor do not go further, and show an inequality of value, or other physical facts than that one lot is improved and the others are not, it does not affirmatively show or aver that said land can be equitably divided, and is not subject to the respondent's fourth and sixth grounds of demurrer. Smith v. Witcher, 180 Ala. 102, 60 So. 391; McEvoy v. Leonard, 89 Ala. 455, 8 So. 40.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.