This case on the first appeal is reported in Smith v. Smith et al., 212 Ala. 132, 101 So. 903. After remandment of the case, without apparent objection, by way of amendment, a new bill was substituted for the original bill as amended. By the substituted bill the complainant seeks the cancellation of a deed made by Amanda Smith to the respondent, A. J. Smith, on the 16th day of October, 1918, after the lands in question were set apart to the widow of H. L. Smith, deceased, as a homestead. The bill also prays for partition in kind, between the complainant and defendants, according to their respective interests, and, in the alternative, for a sale of the property for division on the ground that it cannot be equitably divided.
While the bill avers as a conclusion that "complainant and defendants are joint owners and tenants in common," it does not show the relation of the parties to H. L. Smith, deceased, nor that the complainant is claiming under him except by mere intendment.
"Pleadings are required to be certain and specific in their averments of the material facts of which the right to relief depends, so as that it shall not be left to inference, merely, what those facts are." Richards v. Richards, 98 Ala. 599,12 So. 817.
A proceeding for partition in kind and a sale for division, between joint owners, are inconsistent remedies. Joint owners or tenants in common are entitled as a matter of right to partition in kind, if the lands can be equitably divided, while the right to a sale for division depends upon the fact, which must be averred and proved, that the lands cannot be equitably divided. Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604; Chandler v. Home Loan Company et al., 211 Ala. 80, 99 So. 723.
The bill avers:
"That after the death of complainant's father, H. L. Smith, the lands under some sort of court proceedings were set apart to his widow, Amanda Smith."
Construing this averment most strongly against the pleader, as must be done on demurrer, it will be assumed that such court proceedings were regular and in due form, intercepting the passing of the title to the heirs at law of H. L. Smith, and vesting it in the widow. Code of 1923, § 7920; Schloss v. Brightman, 195 Ala. 540, 70 So. 670; Randolph v. Vails,180 Ala. 82, 60 So. 159.
Proceeding on this assumption, the complainant, who inferentially is claiming as an heir at law of H. L. Smith, is without right to file the bill in any of its several aspects. Unless he claims under or through Amanda Smith, he is in no position to complain that A. J. Smith procured the conveyance from her by undue influence, nor can he claim as an heir at law of Amanda Smith *Page 572 without averring, as well as proving, that she died before the filing of the bill. If he claims as an heir at law of Amanda Smith, he must show who her other heirs are and make them parties to the bill, and, in the absence of averments that she owed no debts at the time of her death, her administrator, or an administrator ad litem, must be made a party. Chandler v. Home Loan Co. et al., supra; Winsett v. Winsett, 203 Ala. 373,83 So. 117. The court erred in overruling the demurrers to the bill, and for this error the decree must be reversed.
Viewing the case as made by the proof, it seems to be clear that the complainant is claiming an interest in the property as an heir at law of H. L. Smith, deceased. It further appears that the proceeding in the probate court of Etowah county, setting apart the property here involved, as exempt to Amanda, the widow, were instituted and completed before the passage of the act brought forward in the Code of 1923 as section 7934, requiring written notice to be given to the heirs in such proceedings, and that the proceedings were regular, vesting the title to the property absolutely in the widow. Under this state of the pleadings and proof, the court erred in granting complainant relief.
The question as to whether the present bill can be amended so as to conform to the facts is not now presented, and, in order that no injustice may result, the decree of the circuit court is reversed, and the cause will be remanded to that court for such further proceedings as the facts of the case may warrant and justice require.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.