Shannon v. Ogletree , 200 Ala. 539 ( 1917 )

The amendments to the substance of the bill of complaint were made by additions to certain paragraphs of the bill, and not by adding distinct new paragraphs. In such a case the original footnote requiring respondent to answer those paragraphs is obviously sufficient, and a new footnote will not be required. The statement in open court by H. C. Ogletree, then no longer a party to the bill, declaring his release of his interest to his children, cannot be regarded as an amendment to the bill, and will be disregarded.

It has been settled in this state that a sale for distribution may be had between one who owns the entire life estate and his cotenants in remainder. Fitts v. Craddock,144 Ala. 437, 39 So. 506, 113 Am. St. Rep. 53. That case is decisive of complainants' right to maintain the present bill. In case of sale for division, the rights of reversioners or remaindermen may be protected by requiring a suitable bond, with sureties, before turning over the proceeds of sale to the life tenant. McQueen v. Turner, 91 Ala. 273, 8 So. 863; Fitts v. Craddock, supra.

There is no doubt of the correctness of respondent's contention that the statutory life estate of H. C. Ogletree, in the nature of an estate by the curtesy, has vested in respondent Shannon by virtue of the statutory warranty found in the mortgage executed by him jointly with his wife. Blakeslee v. Mobile L. I. Co., 57 Ala. 205; Chapman v. Abrahams, 61 Ala. 108; Jones v. Reese, 65 Ala. 143. The case of Vary v. Smith,162 Ala. 457, 50 So. 187, deals with a deed wherein only the interest of the grantor was in terms conveyed, and is to be distinguished from cases like the present where the land itself is conveyed without restriction.

If the allegation of the bill is true that Mrs. Ogletree, the mother of complainants, executed the mortgage to secure the individual debt of her husband, the mortgage was a nullity as to her half interest in the lands. It does not appear that she received any part of the consideration stated, and there is no room for the application of the rule requiring complainants who seek equity to also do equity, even if it could otherwise be applied.

The demurrers were properly overruled, and the decree will therefore be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.