Berry Lumber Co. v. Garner et al.

Berry Lumber Co. v. Garner et al. Bill in Equity for Sale of Lands for Division among Tenants in Common. 1, Bill by tenants in common for sale of lands; when sale properly ordered, notwithstanding failure to malee proof that lands could not be equitably divided. — Where a bill is filed by tenants in common against other co-tenants for the purpose of having the lands sold, and the proceeds divided among the tenants, and it is averred in the bill that said “lands cannot be equitably divided among the tenants in common aforesaid, without a sale thereof,” and in their answers the defendants fail to deny this averment in said bill, the fact that there was no evidence introduced that the lands could not be equitably partitioned, does not make a decree ordering the sale erroneous, if complainant is otherwise shown to be entitled to such relief; since the failure',on the part of the defendants to deny such averment of the bill was an admission of the truth of that averment in said bill, the fact that there was no evidence introduced that the lands could not be equitably partitioned, does not make a decree ordering the sale erroneous, if complainant is otherwise shown to be entitled to such relief; since the failure on the part of the defendants to deny such averment of the bill was an admission of the truth of that averment, dispensing with the necessity for evidence. Appeal from tlie Chancery Court of Coffee. Heard before the Hon. W. L. Parks. The appeal in this case is prosecuted from a decree granting the relief prayed by the complainants in a bill filed for the purpose of having lands sold, and the proceeds divided between the complainants and respondent, who were tenants in common of said lands. The facts of the case are sufficiently stated in the opinion. Mulkey & Carmichael, for appellants. Cited. Code 1896, § 3181; Mitcjliell v. Mitchell, 101 Ala. 183; Keoton v. Terry, 93 Ala. 84; McEvoy v. Leonard, 89 Ala. 457. No counsel marked for appellee. [MAJORITY — McCLELLAN, O. J.] McCLELLAN, O. J. This bill is filed by Minnie Garner and others against the Berry Lumber Company. It avers that complainants and respondents are tenants in common in certain lands, and sets forth the interest of each party. It is further averred that the respondent is in possession of the land and has been for some years, and this is admitted by the answer. And the further averment is made that said “lands cannot’ be equitably divided among the tenants in common aforesaid without a sale thereof.” The prayer is for a sale of the land, and for a division of the proceeds among the tenants; and this relief was decreed. The only point made here against the decree is that there was no evidence that the lands could not be equitably partitioned. There was no evidence on this point. But the answer failed to deny the averment to this effect in the bill. If the lands were sus-’ ceptible of equitable partition, the fact was Avithin the knowledge of the respondent. Its failure to' deny the averment of the bill to the contrary Avas an admission of the truth of that averment dispensing Avith the necessity for evidence. — Grady et al. v. Robinson, 28 Ala. 289; Smilie v. Silers’ Admr., 35 Ala. 88; Moog et ux v. Borrow et al., 101 Ala. 209. Affirmed. Tyson, Simpson and Anderson, J. J,, concurring.