Opinion
4 Div. 131.
November 6, 1924. Rehearing Denied November 27, 1924.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
Thigpen, Murphy Jones, of Andalusia, for appellants.
The bill is demurrable for failure to allege with certainty the respective interests of the parties. Martin v. Cannon, 196 Ala. 151, 71 So. 996. It is multifarious. Code 1907, § 3095; McDaniel v. Turnipseed, 165 Ala. 189, 51 So. 757; Bentley v. Barnes, 155 Ala. 659, 47 So. 159. It is demurrable for failure to allege peaceable possession. Code 1907, § 5444; Brown v. Feagin, 174 Ala. 438, 57 So. 20.
A. Whaley, of Andalusia, for appellees.
The estate and all parties being before the court, no administration being sought otherwise, the court will do complete equity in the premises. Comer v. Shehee, 129 Ala. 588, 30 So. 95, 87 Am. St. Rep. 78; Marshall v. Marshall, 86 Ala. 383, 5 So. 475; Webb v. Butler, 192 Ala. 295, 68 So. 369, Ann. Cas. 1916D, 815; Stone v. Knickerbocker, 52 Ala. 589; Singer v. Singer, 165 Ala. 144, 51 So. 755, 29 L.R.A. (N.S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102. The bill is not multifarious. Sicard v. Guyllou, 147 Ala. 239, 41 So. 474.
While precise pleading would require a statement, in terms, of the fractional interest of each of the parties shown to be tenants in common of the lands, yet the interest of each does appear by necessary implication from the facts alleged, whichever alternative averment as to Fleming's interest may be true.
According to the averments of the amended bill Fleming's interest will depend upon the operation of his sheriff's deed upon the interest of John A. Stokes, originally the owner of a one eleventh interest, to which was added by the death of his brother Charles one tenth of a one twenty-second interest. There is no objection to the averment of alternative theories as to the extent of Fleming's interest, nor is there any impropriety in making John A. Stokes a party respondent to the bill, under that alternative, so that doubtful or conflicting claims may be determined.
Our present statute (Code 1923, § 9334), in force since October 6, 1920, is broader than its predecessor, and provides that —
"The court may adjust the equities between and determine all claims of the several cotenants or claimants as well as the equities and claims of the incumbrancers." (Italics ours.) Sandlin v. Anders, 210 Ala. 396, 98 So. 299.
So far as the interests of the parties are concerned, there will be no difficulty in adjusting them properly when the facts are before the court.
It is urged, however, that the bill goes beyond its proper scope and bounds when it attempts to charge alleged debts due from the respondent heirs to their mother, Nancy Stokes, against their share of the interest (apparently either two elevenths or one twenty-second) descended from her to complainant and respondent heirs in equal part, because that would involve an administration of the estate of Nancy Stokes, which, under the most liberal construction of our partition statutes, is wholly foreign to the scope of the bill.
The theory of the bill is that for any debts due to a decedent from his heirs and distributees a lien attaches to their interests in his lands, upon its descent to them, in favor of the other heirs and distributees — the adjustment of which falls within the quoted provisions of section 9334 of the Code, supra.
This proposition was given thorough consideration by this Court in Streety v. McCurdy, Adm'x, 104 Ala. 493, 16 So. 686, and the correctness of this theory and prayer of the instant bill was pointedly affirmed. Its application here is clearly authorized by the broad provisions of section 9334. The bill shows that all the debts of Nancy Stokes have been paid, and hence there can be no necessity for administration of her estate. We have examined all of the contentions made by counsel as to the insufficiency of the bill and find none that are meritorious.
Section 6110 of the Code authorizes counsel to agree in writing upon an abstract of the record, by way of its abridgment on appeal. But no penalty is authorized in case counsel for either party should refuse to make such an agreement when proposed by the other. It appears that the answer and cross-bill of the respondent Fleming was wholly foreign to the issues and purposes of this appeal, and that it fills 11 of the 25 pages of the transcript of the proceedings. It should not have been included, but it was the duty of appellant's counsel to either instruct the register in that regard or else to have moved seasonably for the expunction of the unnecessary matter.
But such a motion must be promptly made at the first opportunity, and comes too late afterwards. Barr v. Collier, 54 Ala. 39, 44. No motion has been made in this case, and the question is not properly before us.
The decree of the circuit court will be affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
On Rehearing.
Conceding that the prayer of the bill seeks to charge the entire distributive interests of those respondents who are indebted to the estate of their mother, Nancy Stokes, with their respective debts, instead of their interests in that fraction of the lands descended from her — to which the equity of the charge is of course limited — yet this does not render the bill demurrable. In such a case the court will simply disregard the prayer, in so far as it prays for excessive relief, and decree according to the facts alleged and proved. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Pickens v. Clark, 203 Ala. 544, 84 So. 738.
The amendment to the bill of complaint does leave in doubt the disposition of the interest of John A. Stokes, but it sufficiently alleges, in the alternative, the interest of John A. or S. K. Fleming, as purchaser at execution sale. There will be no practical difficulty when the evidence is before the court.
Counsel conceive that we are repudiating the rule announced in Martin v. Cannon, 196 Ala. 151, 71 So. 996, viz., that in a bill for the sale of land for distribution the respective interests of the cotenants must be alleged. But that case is clearly distinguishable from this. There the bill showed that the respondent owned an undivided three-fourths interest, and the three complainants jointly an undivided one-fourth, and there was nothing to show in what proportion they owned their fourth. Here the entire estate except Fleming's alternatively stated interest of one-tenth, came to the parties by descent, and, as matter of law — not of inference — it vested in equal parts in the heirs. Hence, on the facts alleged, the law determines the interest of each cotenant, which is a matter of mathematical computation merely. In such a case a specific allegation in figures is not essential. To require it would be a sheer technicality, which we cannot sanction. We find no reason for changing our conclusions, and the petition for rehearing will be overruled.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.