It is well settled by the decisions of this court that one joint owner of land may file a bill in equity for a sale of same for division when the same cannot be fairly partitioned in kind between the respective owners, notwithstanding the owners may be husband and wife. Donegan v. Donegan, 103 Ala. 488,15 So. 823, 49 Am. St. Rep. 53. Such a bill, however, cannot be maintained by the husband against the wife, over her objection, when the land sought to be sold constitutes the homestead. Mitchell v. Mitchell, 101, Ala. 183, 13 So. 147. The last part of paragraph 3 of the bill charges that the land in question was not used as a homestead at the time of filing said bill, and this averment was neither eliminated nor contradicted by the amendment to said bill.
Paragraph 4 of the bill, before and after amendment, charges that the said land cannot be equitably divided, and, while the reasons given therefor do not go further, and show an inequality of value, or other physical facts than that one lot is improved and the others are not, it does not affirmatively show or aver that said land can be equitably divided, and is not subject to the respondent's fourth and sixth grounds of demurrer. Smith v. Witcher, 180 Ala. 102, 60 So. 391; McEvoy v. Leonard, 89 Ala. 455, 8 So. 40.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur. *Page 59