Opinion
4 Div. 319.
April 7, 1927.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
E. C. Boswell, of Geneva, for appellant.
Count 3 claims that plaintiffs owned five-sevenths interest in the land, and count 4 claims that plaintiffs owned the land. This rendered the complaint repugnant or duplicitous. Lusk v. Britton, 198 Ala. 245, 73 So. 492. The decree in equity was res adjudicata as to this suit. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; S. N. A. v. Henlein, 56 Ala. 368; McTighe v. McLane, 93 Ala. 628, 11 So. 117; 4 Mayfield's Dig. 728. The affirmative charge requested by defendant should have been given. Carter v. Shugarman, 197 Ala. 577, 73 So. 119; Morrison v. Clark, 14 Ala. App. 323, 70 So. 200; Harris v. Sanders, 186 Ala. 350, 65 So. 136.
Carmichael Tiller, of Geneva, for appellees.
Plaintiffs had the right to sue jointly or separately. Smith v. Wiley, 22 Ala. 396, 58 Am. Dec. 262; Patten v. Swope, 204 Ala. 169, 85 So. 513. Defendant's pleas of res adjudicata were subject to demurrer; the subject-matter of the two suits was entirely different. Said pleas neither set out the record of the proceedings in the equity suit nor state the entire effect of the decree. Karter v. Fields, 140 Ala. 352, 37 So. 204; Gilbreath v. Jones, 66 Ala. 132; Quinn v. Pratt, 177 Ala. 440, 59 So. 49; Green v. McCord, 204 Ala. 364, 85 So. 752.
The suit is in assumpsit by tenants in common in lands to recover their share of rents received by a cotenant.
The action was maintainable without the joinder of all cotenants. Plaintiffs were entitled to recover the share of rents coming to them. McCaw v. Barker, 115 Ala. 543, 22 So. 131; Ala. Fuel Iron Co. v. Broadhead, 210 Ala. 545, 98 So. 789.
The pleas of res adjudicata setting up the proceedings for partition in equity, resulting in a decree of sale for division, do not set forth so much of the proceedings in substance and effect as to show that the rents in controversy were within the issues presented and adjudicated in the partition suit. In fact, the pleas taken in connection with the complaint show none of the rents claimed had accrued at the time the bill was filed. The rents of 1924 had not accrued and do not appear to have been received when the final decree of sale was rendered in the partition suit.
The demurrer was properly sustained to the pleas of res adjudicata. Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514.
That the complaint included 20 acres of land in which plaintiffs had no interest did not defeat the right to recover for rents on that portion in which they did have an interest as tenants in common. That the court, because of the inclusion of lands not owned by plaintiffs, announced a purpose to continue the cause, whereupon plaintiffs withdrew the claim as to 20 acres not owned, and the court proceeded to properly instruct the jury eliminating such rents, is not a matter of complaint to the defendant. This effectually cured any error in admission of evidence as to rents received from the 20 acres.
That one count of the complaint alleged five-sevenths interest in plaintiffs, and another alleged ownership in general terms, in no wise subjected the complaint to demurrer; nor did proof of five-sevenths interest constitute any variance as to the latter count. Plaintiffs could recover for their share of rents due for part interest in all or a portion of the lands. Besides, under the undisputed evidence, the recovery was properly had under the common counts in assumpsit, not on the counts for use and occupation.
The general charge as to the whole complaint was properly refused.
Other assignments of error insisted upon are so patently without merit as to call for no discussion.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.