Smith v. Witcher
Supreme Court of Alabama
Appeal from Autauga Chancery Court. Heard before Hon. W. W. Whiteside. Bills by Hezekiah Witcher against M. M. Smith, and against T. J. Hicks, and others for the sale of certain lands for division. From a decree overruling the demurrers to the bill, the causes having been consolidated, respondents appeal.
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Appeal from Autauga Chancery Court. Heard before Hon. W. W. Whiteside. Bills by Hezekiah Witcher against M. M. Smith, and against T. J. Hicks, and others for the sale of certain lands for division. From a decree overruling the demurrers to the bill, the causes having been consolidated, respondents appeal. The facts stated in the bill did not Avarrant the assertion that the property could not be equitably divided for partition among the joint OAvners thereof. — Key ton v. Perry, 93 Ala. 85; McEvoy v. Leonard, 89 Ala. 457; Freeman on Co-tenancy, sections 433 and 507. Without statutory authority…
1Opinion of the CourtMcCLELLAN, J.
Bills to sell, for division, lands jointly OAvned. Code, §§ 5222, 5231. Demurrers to each were overruled. The appeals were submitted together, the same questions being decisive of each.
It is averred in both of the bills that the lands described therein cannot be equitably divided without a sale thereof. The averment stated conforms to the *104language of the statute, and is sufficient. Such was pronounced, in McEvoy v. Leonard, 89 Ala. 455, 460, 8 South. 40, 41, to he “always safest in such proceedings.” That averment is not a conclusion of the pleader, but an allegation of fact.
It is insisted…
2Cases cited2 opinions
- McEvoy v. LeonardSupreme Court of Alabama · 1889
- Northern v. TatumSupreme Court of Alabama · 1909
3Cited by21 opinions
- Clark v. WhitfieldSupreme Court of Alabama · 1925
- Carson v. SleighSupreme Court of Alabama · 1917
- Leddon v. StricklandSupreme Court of Alabama · 1928
- Wheat v. WheatSupreme Court of Alabama · 1914
- Wood v. BarnettSupreme Court of Alabama · 1922
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