Opinion
6 Div. 339.
December 20, 1945.
Appeal from Circuit Court, Cullman County; Julian Harris, Judge.
Suit in equity by Frank Arndt and others against Annie Franklin Sands to sell lands for division among joint owners or tenants in common. From a decree sustaining a demurrer to the bill as amended, named complainant appeals.
Affirmed.
W. Marvin Scott, of Cullman, for appellant.
The main equity of the bill is for sale and division, the accounting asked for being a mere incident, and complainants are entitled to an accounting. Self v. Self, 212 Ala. 512, 103 So. 591; Henderson v. Stinson, 207 Ala. 365, 92 So. 453; Ford v. Borders, 200 Ala. 70, 75 So. 398; Wheat v. Wheat, 190 Ala. 461, 67 So. 417; McCaw v. Barker, 115 Ala. 543, 22 So. 131. Equity abhors a multiplicity of suits. Cox v. Parker, 212 Ala. 35, 101 So. 657. Having acquired jurisdiction for partition, the court will proceed to a settlement of all related matters. Marshall v. Marshall, 86 Ala. 383, 5 So. 475; Hause v. Hause, 57 Ala. 262; Ware v. Russell, 70 Ala. 174, 45 Am.Rep. 82; Converse Bridge Co. v. Geneva Co., 168 Ala. 432, 53 So. 196; Ellis v. Vandergrift, 173 Ala. 142, 55 So. 781; Baggett Mer. Co. v. Vickery, 213 Ala. 427, 105 So. 207. Personal representative is not a necessary party if his presence can be dispensed with by averment of certain facts. Tindal v. Drake, 51 Ala. 574. To prevent multiplicity of suits courts of equity sometimes entertain bills by complainants between whom there exists no privity of contract and against defendants between whom there exists no connection except community of interest. Kennedy v. Kennedy, 2 Ala. 571.
Earney Bland, of Cullman, for appellee.
Certain complainants claiming no interest as tenants in common and stating no cause for relief otherwise are misjoined as parties complainant. Staples v. Barrett, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. The bill shows original complainant, appellant, was entitled to maintain the suit for sale for division, but by addition of parties by amendment who are not tenants in common, neither can recover. Mosaic Templars v. Flanagan, 22 Ala. App. 377, 115 So. 860. The amended bill fails to show a possessory right in the added complainants, or a present right of enjoyment, and they cannot be made parties complainant in the suit. Etheredge v. Etheredge, 219 Ala. 660, 123 So. 48.
This is an appeal from a decree sustaining a demurrer to a bill in equity. The decree recites that it is sustained because of a misjoinder of complainants, in that the bill as amended alleges that three of the complainants have no interest in the land sought to be sold for division between tenants in common.
It is apparent that parties are improperly joined in such a suit for that purpose, unless there is some equity in their favor which justifies it, and which is not here shown. Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084; Caheen v. First National Bank, 230 Ala. 105, 159 So. 815. The allegation that some of the parties have a deed from the heirs of William and Janie Arndt does not justify joining in the suit as parties those who may have sold their interest to complainant, Frank Arndt, or at least have no present interest, because they have a claim against respondent, another heir, for a large amount of lumber connected with the settlement of the estate of William and Janie Arndt.
The matter sought to be litigated in favor of some of the complainants is not germane to the sale of the land for division, and those complainants have no interest in the subject matter of the suit.
The bill is confusing in its allegations as to ownership. While it states that one of the complainants Frank Arndt owns a one-third and three-fourths of one-third, and complainant Joseph A. Moranz owns a one-fourth of one-third, and respondent Annie Franklin Sands owns a one-third, it also alleges that Mary Arndt Moranz owned said property jointly with Mary Anne Arndt and Annie Franklin Sands under a deed of October 28, 1938, from the heirs of William and Janie Arndt. It does not show how it passed out of Mary Arndt Moranz and Mary Anne Arndt. There should be no such conflicts in the allegations of the bill.
The demurrer was properly sustained.
Affirmed.
GARDNER, C. J., and THOMAS and LAWSON, JJ., concur.