
    Stimpson v. Malone & Foote.
    
      Statutory Proceeding in Probate Court for Partition of Lands.
    
    
      1. Partition ; jurisdiction of court; presumption in favor of decree. — Although the Probate Court, in the matter of the partition of property, real or personal, between joint ovmers or tenants in common (Code of 1876, '§§ 3497-3507), is a court of special and limited jurisdiction ; yet, when its j urisdiction is apparent on the face of its proceedings, all reasonable intendments are made in favor of their regularity, as of courts of general jufidsiction,
    2. Same ; where parties own unequal interests. — The fact that the parties own unequal interests in the property, so that partition by lot4s impracticable, does not take away the jurisdiction of the court.
    3. Same; objections to commissioners' report. — Objections to me commissioners’ report are not available on error, unless made in the primary court, and reserved by bill of exceptions.
    Appeal from the Probate Court of Marengo.
    In the matter of the petition of Malone & Foote, as partners, asking the partition of certain lands, which were particularly described, and which were alleged to be situated partly in Marengo and partly in Choctaw county, between themselves and Herbert H. Stimpson. The petition was filed on the 10th April, 1876-J and was under oath. It alleged that the petitioners were the owners “of an undivided interest of six-twentieths” of two tracts of lands, known respectively as the “Barney Upper Place” and the “Barney Lower PÍace,” which were particularly described by the government numbers and designations, and which together contained more than eight thousand acres ; and that the other undivided interest, being fourteen-twentieths, belonged to said Herbert H. Stimpson, who resided in Cambridge, Massachusetts, and who had mortgaged his interest to Sumner J. Brooks and Knowlton S. Chaffee, who resided in ■ Boston, Massachusetts. On the filing of the petition, the court appointed the first Monday in June for the hearing of the application, and ordered notice, by publication, to be given to said Stimpson, Brooks, and Chaffee; and on that day, the petitioners and said Stimpson appearing by attorney, the court granted the application, and appointed five commissioners to make tbe partition as prayed. Tbe commissioners made a report of tbeir proceedings in writing, wbicb, after reciting their appointment, proceeded thus : “After being sworn, as by law directed, to execute said trust, and to make said partition, we have examined tbe lands described in said commission, and bad the same surveyed; and we do hereby divide said lands as follows : We divide and allott to saicl Malone & Foote that part or portion of tbe Barney Upper Place beginning at tbe mouth of Horse Creek, and more particularly described as follows,” &c., “all lying and being in Marengo county, and containing altogether 2,164 acres, and being equal to six-twentieths of all the lands described in said commission. And we allot to tbe said Herbert H. Stimpson and bis mortgagees tbe following lands as tbeir part, to-wit,” &o.; “and that the said shares so allotted and divided to tbe said Stimpson and bis mortgagees are equal to fourteen-twentieths of tbe lands described in said commission. And tbe undersigned, commissioners as aforesaid, hereby report that tbe said division, partition and allotment was conducted in all respects, as nearly as may be, with fairness, and without partiality, as directed by tbe commission, after having regard to the character of tbe soil and other advantages, so as to make tbe different shares as equal in value as practicable to tbe interests owned by tbe said parties, as set forth in said commission. This done at Linden, in tbe office of the judge of tbe Probate Court of said county, this 28 tb day of August, 1876, after having given tbe notice, as required by section 3110 of the Revised Code, by publication of the same in tbe Marengo News Journal.” This report, as set out in tbe record, was signed by tbe commissioners, and attested by the probate judgo.
    Tbe decree of tbe court, rendered on said 28th August, 1876, after reciting tbe appointment of tbe commissioners and tbeir appearance, continues thus : “And tbe said commissioners having made and signed a statement in writing, wbicb is attested by tbe judge of this court, showing tbe result of tbe proceeding, wbicb was duly bad in tbe presence of said judge, under and in pursuance of said commission and decree, to determine by lot to whom each of tbe several parcels, into wbicb said land Was laid off in order to make such partition, should belong, and setting forth to whom tbe said several parcels or lots were allotted, together with all tbe facts relating to such division and allotment; thereupon came H. H. Stimpson et al., by tbeir attorney, and also came tbe said Malone & Foote by their attorney; aúd tbe said H. H. Stimpson et al., now objecting to tbe proceedings of the said commissioners in this behalf, and to the return thereof, upon the ground that the same are irregular and incomplete; and the said objections being argued by counsel, and heard and duly considered by the court, it is ordered, adjudged, and decreed, that said objections be overruled, and that the said proceedings of said commissioners, and their said return, or report thereof, be in all respects ratified, approved, and confirmed,” and that the proceedings be recorded. There is no bill of exceptions in the record.
    The following errors are now assigned: “1. The record does not show the jurisdiction of the court over the subject-matter. 2. The commissioners did not pursue or comply with the requirements of the statute in such cases. 3. The court erred in the decree rendered. 4. The court erred in overruling the appellant’s objections to the proceedings and report of the commissioners, and in ratifying and comfirming the same. 5. The court was without jurisdiction, as shown by the record.”
    Glover & Taylor, for appellant.
    Geo. G. Lyon, contra.
    
   BRICKELL, C. J.

It may be admitted that the Court of Probate, in the matter of the partition of property, real or personal, between tenants in common, or joint owners, is a court of limited or statutory jurisdiction, and that it is essential to the regularity of its sentence that its records should disclose every fact orr which the jurisdiction depends. Tet, when its jurisdiction is apparent on the face of its proceedings, the rule applies that is applied to courts of general jurisdiction, that all reasonable intendments must be made to support its decrees.—Wyman v. Campbell, 6 Port. 219; Key v. Vaughn, 15 Ala. 496; Wilson v. Wilson, 18 Ala. 176. If through the jurisdiction of the Court of Probate the partition of lands is sought, it must be by an application in writing, made to the judge of probate of the county in which the lands are situate, by the joint owners, or tenants in common thereof, or one or more of them. The application must set forth the names of all the persons interested in the lands, and their residence, and the lands must be described; the interest of each joint owner, or tenant in .common, must be stated, and the number of shares into which the lands are to be divided. — E. C. §§ 3105-06. When the application is filed, the jurisdiction of the court attaches. The subsequent proceedings are in the exercise of the jurisdiction; and while the record must disclose a substantial conformity in them to the statutes, they are not to be scanned for the purpose of finding errors, but viewed with the liberality which would be extended to the proceedings of courts of general jurisdiction.

The record discloses that an application, in writing, was made to the Court of Probate, averring every fact on which its jurisdiction rests, unless the fact disclosed, that the parties between whom partition was sought owned unequal interests, so that partition by lot was impracticable, prevented the jurisdiction from attaching. The jurisdiction is dependent on the joint ownership, or the tenancy in common, not on the equality of the interest of the owners, or tenants in common. If property is held by them, though in unequal interests, the jurisdiction exists, and the decree must be for a partition or division, according to their respective interests therein. — E. C. § 3108. Neither the language of the statute, nor the manifest object of its enactment, justifies the limitation of the jurisdiction to eases in which the tenants in common have equal estates or interests, and there can be partition by lot. The application clothed the Court of Probate with the jurisdiction it exercised.

The remaining grounds of error are of matters touching the regularity of the proceedings of the commissioners appointed to make partition, and the sufficiency of their report. If there he any force in these objections, they were the proper matter of exception to the report in the Court of Probate. No such exceptions were interposed in that court, and we must decline now to consider them.

The decree of partition is affirmed.

Manning, J., not sitting.  