Raper v. Belk , 276 Ala. 370 ( 1964 )

162 So. 2d 465 (1964)

Cornelia RAPER
v.
Ruby BELK et al.

6 Div. 5.

Supreme Court of Alabama.

March 26, 1964.

Cato & Hicks, Birmingham, for appellant.

Nelson Vinson, Hamilton, for appellees.

MERRILL, Justice.

Appeal from a decree ordering certain lands sold for division among the joint owners. The decree must be reversed for the failure of appellees to prove their allegation that the "lands cannot be equitably divided or partitioned among the joint owners or tenants in common without a sale of the same."

Partition of land between joint owners or tenants in common is a matter of right, but the alternative right to have land sold for division is statutory, and is conditioned upon averment and proof that the property cannot be equitably divided or partitioned among them. When this condition appears, the right to sell for division is a matter of right, but if this condition is not proven, no sale for division should be ordered. Leonard v. Meadows, 264 Ala. 484, 88 So. 2d 775; Meador v. Meador, 255 Ala. 688, 53 So. 2d 546; Hall v. Hall, 250 Ala. 702, 35 So. 2d 681; Tit. 47, §§ 186, 210, Code 1940.

Appellees argue that the testimony describing the land as "pretty hilly" meets the requirement. But hilly land is susceptible to partition and that characterization does not comply with the condition precedent to ordering land sold for division.

The decree is reversed and the cause is remanded.

Reversed and remanded.

LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.