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03/31/95 ROBERT L. LAIRED v. ANITA M. LAIRED SALATA

March 31, 1995

ROBERT L. LAIRED, ET AL.
v.
ANITA M. LAIRED SALATA, ET AL.



Appeal from Mobile Circuit Court. (CV-92-002811). Edward B. McDermott, TRIAL JUDGE.

Released for Publication August 21, 1995.

Cook, Hornsby, C. J., and Shores, Houston, and Ingram, JJ., concur. Maddox, J., Dissents.

The opinion of the court was delivered by: Cook

COOK, JUSTICE.

This case began as an action for the partition of jointly owned real property or for the sale of that land and a division of the proceeds.

Robert Laired and Anita Salata are brother and sister. They were devised an undivided life estate in 11.43 acres by their aunt. Robert has 5 children and Anita has 4 children. All of the children have reached the age of majority. Laired and Salata's children were devised the remainder interest in the property. Thus, there are 11 persons with interests in this estate: 2 holders of life estates and 9 remaindermen. Approximately 28 years before this litigation was commenced, Robert and Anita each built a house on the property. They reared their children there and each operated a small business out of the home. According to the parties, they shared a common driveway, but maintained separate homesites.

Eventually, disputes arose between them, and Robert, as the owner of an undivided fractional interest in a life estate, and his five children, as owners of undivided interests in the remainder, joined to sue Salata and her children, seeking a sale of the property and a division of the proceeds, alleging that the land could not be equitably divided. The trial court, however, granted the defendants' motion for summary judment, relying on Blue Lands Development, Inc. v Broadus, 396 So. 2d 69 (Ala. 1981). That case states:

"The issue presented: Absent consent of a life tenant, can a cotenant (joint owner of a vested remainder interest in real property) maintain an action to partition or sell for [division of the proceeds] pursuant to Code 1975, § 35-6-20, subject to the existing life estate?

"The trial court answered this question in the negative, dismissing the suit for partition or sale for division of the proceeds. We affirm on the authority of Chapman v. York, 208 Ala. 274, 94 So. 90 (1922). See, also, Bedsole v. Bedsole, 272 Ala. 589, 133 So. 2d 237 (1961); and Michael v. Davis, 372 So. 2d 304 (Ala. 1979). "

Blue Lands Development, Inc. v Broadus, 396 So. 2d 69, 69-70 (Ala. 1981). We reverse and remand.

In Michael v. Davis, 372 So. 2d 304 (Ala. 1979), this Court noted:

"There is no tenancy in common and thus no sale for division where one is a tenant for life, while the others are reversioners or remaindermen of the whole. Street v. Watts, 202 Ala. 622, 81 So. 564 (1919). This Court has approved sales for division where the widow joins with an heir or remainderman in seeking to have land sold to divide the proceeds among the owners of the fee after payment to the widow of her homestead and dower interest. Bedsole v. Bedsole, 272 Ala. 589, 133 So. 2d 237 (1961)."

Michael v. Davis, 372 So. 2d at 306 (emphasis added). It is clear from Michael v. Davis that remaindermen alone can not initiate an action against the holder of a life estate for a partition of property. It is also equally clear that the owner of the life estate ...


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