The primary purpose of the bill is a sale of real estate for division among tenants in common. The appeal is from a decree sustaining demurrer to the bill.
W. W. Derrick and Nancy Derrick, his wife, owned the lands, 95 acres in area, as tenants in common, each owning an undivided half interest. After the death of Nancy Derrick, the surviving husband continued in possession of the lands as his homestead, holding the half interest of his deceased wife by curtesy.
Later W. W. Derrick married Jennie Derrick. After the death of W. W. Derrick, and in the course of administration of his estate in the probate court, a homestead in the lands was set apart to Jennie Derrick, the surviving widow. The bill is filed by the heirs of Nancy Derrick, the first wife, part owners of her undivided half interest.
The widow, Jennie Derrick, was and is entitled to a homestead in the half interest of her deceased husband. This she was entitled to have set apart to her as in other cases. Her homestead right attached only to such right and title as was owned by her husband at the time of his death. McGuire v. Van Pelt, 55 Ala. 344; McGaugh v. Davis, 150 Ala. 558, 43 So. 745.
Partition of lands held by tenants in common is a matter of right, regardless of the inconvenience resulting to joint owners. The right to sell for division is conditioned upon averment and proof that the property cannot be equitably divided in kind. When this condition appears, the right to sell for division is a matter of right. In other words, the right of partition in one or the other methods provided by law is of right. Joint ownership is not compulsory. Kelly v. Deegan,111 Ala. 152, 156, 20 So. 378; Wood v. Barnett, 208 Ala. 295, 298,94 So. 338. The right is not defeated because the widow or minor children of a deceased tenant in common have a homestead right in his moiety.
The provision of Code, § 7918, that the homestead set apart to the widow shall not be sold or partitioned, except by a court of equity for reinvestment, with the consent of the widow in writing, is for the protection of the widow in the enjoyment of her homestead as against heirs and personal representative of the estate, and also against children who have acquired an undivided interest in the homestead in fee while minors, and, after arrival at age, seek partition or sale for division.
Prior to this provision, such child or his vendee could demand partition or sale while the widow yet lived. Faircloth v. Carroll, 137 Ala. 243, 34 So. 182. At the suit of persons interested in the estate there can be no partition of the homestead whether for life or in fee, except under the terms of the statute. Mathews v. Goodenough, 206 Ala. 229, 89 So. 708. But the statute is not intended to enlarge the homestead right as against tenants in common with the decedent, strangers to his estate. As to them, the right of partition still exists. Otherwise, by a succession of the widows' homestead rights in fractional interests, the property might never be partitioned.
The homestead right of the widow is, however, a favored one, and, in making partition or sale for division at the instance of tenants in common of her deceased husband, her homestead will, in equity, be preserved to her intact, the home itself rather than money in lieu of it, if this can be done without sacrifice to the rights of such tenants in common to have partition of the property.
If, as here, the widow's homestead covers an undivided half interest in the property, and it is capable of equitable division into two equal parts, this will be done, and the court then proceed to sell for division the portion allotted to complainants and their fellow tenants entitled to share in the portion allotted to them on such division. McGaugh v. Davis,150 Ala. 558, 43 So. 745; Clements v. Faulk, 181 Ala. 219,61 So. 264; Upshaw v. Upshaw, 180 Ala. 204, 60 So. 804; Hollis v. Watkins, 189 Ala. 292, 66 So. 29.
Under the facts disclosed by the bill the right to sell the whole lands is not an unconditional right. If it cannot be equitably divided into two equal parts so as to protect the widow's homestead from sale, then it must be all sold, and her homestead right in the proceeds be recognized and protected. But the bill should aver this state of facts to entitle complainants to a sale of the entire tract.
Ground 7 of the demurrer raising this point was properly sustained. The demurrer going to the phase of the bill seeking to avoid the proceedings setting apart the homestead to the widow was also well sustained. Such proceedings did not affect the rights of tenants in common with decedent, but the rights of the widow, the heirs and personal representatives of the estate of W. W. Derrick, deceased, in his half interest.
But demurrers going to the right of tenants in common with the decedent to have partition in appropriate form were not well taken. *Page 52
The bill may be amended so as to pray for partition into two parts, and a sale of the Nancy Derrick portion, for division among her heirs, or, in the alternative, may aver such equitable division cannot be had, and thereupon the prayer of the present bill may be granted as to sale of the whole property.
When the decree sustaining a demurrer is general, preserves the right of amendment, and some grounds are good, the decree will not be reversed.
This leads to an affirmance of the decree.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.