Jernigan v. Gibbs
Supreme Court of Alabama
Appeal from Circuit Court, Coffee County; A. B. Eoster, Judge. Bill by G. Gibbs against Della Jernigan for partition in kind or for sale for division. Decree for complainant, and respondent appeals. The bill alleges a joint ownership, or tenancy in common, between complainant and respondent, and alleges in the alternative-either that the lands can be partitioned in equity or that they are incapable of equitable partition, and so ought to be sold for division.
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Appeal from Circuit Court, Coffee County; A. B. Eoster, Judge. Bill by G. Gibbs against Della Jernigan for partition in kind or for sale for division. Decree for complainant, and respondent appeals. The bill alleges a joint ownership, or tenancy in common, between complainant and respondent, and alleges in the alternative-either that the lands can be partitioned in equity or that they are incapable of equitable partition, and so ought to be sold for division. The demurrers set up that the allegations are-merely conclusions of the pleader, and set out no facts showing that the lands cannot be…
1Opinion of the CourtSomerville, J.
[1] A bill in equity for the sale of lands for partition sufficiently shows a necessity for the sale when, following the language of the statute, it alleges that the lands in.question cannot be equitably divided without a sale thereof. Such an allegation is not subject to demurrer on the ground that it is a mere conclusion, and not the statement of a fact. Smith v. Witcher, 180 Ala. 102, 60 South. 391, citing McEvoy v. Leonard, 89 Ala. 455, 8 South. 40; Wheat v. Wheat, 190 Ala. 461, 67 South. 417; Carson v. Sleigh, 201 Ala. 373, 78 South. 229. The case of Keaton v. Terry, 93 Ala. 85, 9 South.…
2Cases cited11 opinions
- Boykin v. SmithSupreme Court of Alabama · 1880
- Hodges v. DennySupreme Court of Alabama · 1888
- Key v. JonesSupreme Court of Alabama · 1875
- Carson v. SleighSupreme Court of Alabama · 1917
- Wheat v. WheatSupreme Court of Alabama · 1914
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3Cited by12 opinions
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- Wood v. BarnettSupreme Court of Alabama · 1922
- Goodgame v. DawsonSupreme Court of Alabama · 1942
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