B. and others, alleging themselves to be joint owners with certain named persons as the heirs at law of Mrs. A., filed a petition for partition. The parties named by petitioners as joint owners filed an answer, in which they asserted title, and prayed that the petition be denied. This issue was submitted to a jury, who found in favor of the petitioners, and that the land be partitioned. No motion to set aside this verdict was made. A judgment was entered in accordance therewith appointing commissioners, who were ordered to sell the property. After the sale the commissioners filed a report in the cause, addressed to the judge, stating that they had sold to B. the land mentioned; and that the money had been deposited in a certain bank in the name of the commissioners; that it appeared that G had been appointed administrator of the estate of Mrs. A., and that there were tax executions against the property. Direction was asked of the court, whether the proceeds could be turned over to the administrator of the estate of Mrs. A., for the purpose of distribution. Those named as joint owners in the original petition filed objections to the return of the partitioners, asserting that at the time of the sale the administrator of Mrs. A. had pending an application for leave to sell the land, which application was pending; that said sale was a legal fraud, for the reason that there existed a valid obligation of Mrs. A., at the time of the sale; that "prospective bidders were chilled by said obligation and by the said application for leave to sell;" and that "said property would have brought a greater sum but for said fact." These objections were dismissed, and error is assigned. Held, that no error appears in that ruling.
Judgment affirmed. All the Justices concur.
No. 14636. OCTOBER 5, 1943. Carroll Beazley and others filed their petition for partition of a lot of land in Crawfordville, alleging, that they were joint owners of designated interests therein; that the defendants were owners of *Page 650 but one sixth interest, but they were usurping and appropriating the whole property to their use, and refusing to pay to the plaintiffs any of the rents and profits. The defendants answered, denying the alleged ownership of petitioners and attacking certain conveyances by their grandmother, Mrs. Emily Akins, alleging that they were made at a time when she was mentally incapable to make a valid deed; and that before her death, she promised to make a deed to defendants' mother, Mrs. Hill, in consideration of Mrs. Hill's promise to provide for Mrs. Akins a home and care and attention; and that Mrs. Hill carried out her part of the promise, and made substantial improvements on the property. The value of said services was alleged; and it was prayed that the petition for partition be denied.
On August 22, 1942, the jury returned a verdict in favor of the plaintiffs, and that the land be partitioned. The court appointed three commissioners to act as partitioners; and because of the size of the lot it was directed that they sell at public outery the entire lot for the purpose of making the division. After selling the lot in accordance with that order the partitioners reported to the court, asking for direction as to whom the proceeds of the sale should be distributed, stating that in February, 1938, an administrator was appointed for the estate of Mrs. Emily Akins.
The defendants objected to the sale by the partitioners, on the following grounds: (1) That there was an outstanding obligation of Mrs. Emily Akins, deceased, being a promissory note given by her to Maybelle Sturdivant. (2) That at the time of the sale Golucke was administrator of the estate of Mrs. Akins, and his application for leave to sell the land was pending. (3) That prospective bidders were "chilled" by said note, and by the application for leave to sell. (4) That the administrator was not a party to the partition proceeding; that the property was advertised and sold, though Mrs. Emily Akins at the time of her death was the owner of a half undivided interest in the lot, and her title thereto vested in her administrator; that the partitioners were without authority to sell said administrator's interest; and that Carroll Beazley's half interest and the administrator's half interest were sold together. The court overruled these objections, on the ground that Mrs. Sturdivant was before the court, and she did not object that there was an administrator, or that she held a promissory note. *Page 651 An order was passed, directing the commissioners, to make a proper return showing how the funds in their hands were distributed. To the dismissal of their objections, and to the order directing the partitioners to make their return, the defendants excepted pendente lite.
The partitioners made their return showing that one half of the proceeds from the sale, after the payment of costs, was paid to Carroll Beazley, and the other half to the administrator of the estate of Mrs. Emily Akins. The court approved the return and the distribution of the proceeds.
The bill of exceptions, after reciting the rulings to which exceptions pendente lite were filed, and assigning error on said rulings, concludes as follows: "Plaintiffs in error assign as error the final judgment in said case on the 24th day of May, 1943, on the grounds set forth in the exceptions pendente lite as set forth on the preceding page in this bill of exceptions, as being contrary to law, and then and there and now excepts to the same on said grounds."