On further deliberate consideration we find reason to modify our original opinion sustaining that phase of the decree of the trial court awarding Mary Penny compensation for the permanent improvements placed on the property by Alice Penny, her predecessor in title.
First though, responding to the rehearing argument on other aspects of the case, we wish to note that in the original opinion, due account was taken of the effect of the amendments to the original bill which sought to enforce for the other Alice Penny children a right of contribution in an alleged redemption from the lumber company foreclosure, claimed to have been made by Gabriel Penny.
We think it clear enough under the evidence that no redemption was ever contemplated or undertaken by Gabriel, and the trial court correctly so found.
It is not necessary to treat of the possible circumstances under which the exercise of a right of redemption under § 727, Title 7, Code 1940 might have enured to the benefit of the other Alice Penny children had Gabriel effected such redemption, for the reason that the trial court held that no such status existed, but that a straight sale and purchase of the property was transacted between the lumber company and Gabriel. The evidence, substantial on this question, was ore tenus before said court and, under the rule of favorable presumption attending that decision, we sustained it on original submission and now reaffirm it.
Sullivan v. Parker, 228 Ala. 397, 153 So. 858, pressed upon us by appellant as having application, is manifestly without controlling influence and is distinguishable in that in that case the widow and minor children of the deceased owner of the property (consisting partly of their homestead) were tenants in common and on its face the deed there disclosed that the purchase by the widow was an exercise of the right of redemption afforded under the statute, thereby entitling the children to share in the fruits of such redemption.
In the case now under review no such circumstances existed and the relationship of the parties was entirely different. Here, during the lifetime of the then owner, Alice Penny, her son, Gabriel, made a direct and individual purchase of the property from the purchaser at the foreclosure sale to the exclusion of anyone else, to be defeated only if someone authorized should exercise the right under the statute to redeem. This he had a right to do and the recitals of the contract between the lumber company and Gabriel clearly indicated as much, and argument to the contrary is not sustained by the recorded facts.
On the question, however, as to whether Mary Penny should have been decreed to be entitled to benefits from the permanent improvements placed on the property by Alice, the evidence is not so convincing, nor does that issue appear to have been presented by the pleadings. This consideration deals with the respective equities of appellee, Mary Penny, and the heirs of Savannah Craig (appellants, too) brought in as complainants by amendment to the original bill.
In the foregoing opinion we pointed out that though a cotenant who improves the joint estate may know of another outstanding interest, a right of compensation on a sale for division of proceeds would enure to him if the non-improving cotenant consented to the making of the improvements. We think it in order to amplify this statement of the principle, for application to the case in hand.
The authorities generally concur that assent of the other cotenant to the improvement is not regarded as the basis upon which equity awards benefits to the improving cotenant (1 A.L.R. Note 1200, 1209). In this jurisdiction the general rule, now one of property, is rather strict and as predicate for an award of compensation on a sale for division, one essential is that the improver must have been without knowledge of any outstanding interest in the property. More then, than just the mere assent of the cotenant to the improvement would be necessary for an allowance of compensation on a division sale because, under circumstances, consent alone of the non-improving cotenant might not justify compensation, as where it is shown that the other cotenant gratuitously improved the property with an intention not to be *Page 439 reimbursed or, perhaps, under an understanding with the other cotenant that remuneration for improvements would not be made or claimed. Consent, therefore, should be attended with some understanding, express or implied, that the improving cotenant would receive reimbursement in case of sale.
On a re-study of the record we have concluded that it was not sufficiently proven just what was the status of the transaction between Alice and her cotenants and hence, had she remained the owner, an award of compensation to her for improvements would not have been authorized under the evidence, and the appellee, Mary Penny, of course only succeeded to the rights of her said predecessor in title (Porter v. Henderson, supra), rendering the award to her likewise erroneous.
We have also reached the conclusion, though the point was not argued, that another principle militates against this phase of the decree. The decree denied complainants relief and purported to grant Mary Penny, cross-complainant, "the relief asked for in her cross-complaint as last amended." The cross-bill made no claim for these permanent improvements and prayed for no relief in regard thereto and to our minds an adjudication of such matters was not within the issues tendered by the pleadings.
On original submission, since the point was not argued, we gave slight consideration to the question, considering the award regarding the improvements to be a procedural matter incident to the main equities (Bean v. Northcutt, 240 Ala. 289,199 So. 7) and subject to decree without special pleading, but, upon further consideration, it is concluded that for the decree to be well supported the cross-bill should have presented that issue so as to put the adverse party on notice of this special claim.
A bill in equity must set forth every material averment of fact necessary to the right of recovery (Jackson Realty Co. v. Yeatman, 219 Ala. 3, 6, 121 So. 415) and the awarding of this special relief was not within the scope of the pleadings, as framed.
That portion of the decree therefore awarding Mary Penny the value of the improvements was erroneous and is reversed and our former judgment of affirmance is so modified to the end that cross-complainant may, by appropriate amendment, tender such issue and offer proof in support thereof, if desired.
In all other respects the rehearing is denied and the decree stands affirmed.
Let the costs of appeal be taxed two-thirds against appellants and one-third against appellee.
Affirmed in part and in part reversed and remanded.
GARDNER C.J., and FOSTER and LAWSON, JJ., concur.