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 *Page 193 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.