
    (80 South. 404)
    McMILLAN et al. v. McMILLAN et al.
    (1 Div. 47.)
    (Supreme Court of Alabama.
    Nov. 28, 1918.)
    Partition c&wkey;63(l) — Burden of Proof.
    In action for partition of land among tenants in common, where defendants, claiming exclusive title, are in possession of land, the burden is upon complainants to show common title.
    Appeal from Circuit Court, Monroe County; Ben D. Turner, Judge.
    Suit by Liston McMillan and others against John McMillan and wife and others. From decree rendered, respondents appeal.
    Reversed and rendered.
    Barnett, Bugg & Lee, of Monroeville, for appellants.
    J. D. Ratcliffe, of Monroeville, for appellees.
   SOMERVILLE, J.

The bill is filed for a sale of land for division among tenants in common.

Complainants, and some of the respondents, claim as heirs of their grandmother, Mahala McMillan, who, they allege was the owner of the land at her death. The adversary respondents are also heirs of Mahala McMillan, but they claim under an exclusive title deraigned from Aberdeen McMillan, 'Sr., who was the husband of Mahala.

The decisive question of fact in the case is simply whether the original owner, one McKenzie, sold and conveyed the land to Mahala, the wife, or to Aberdeen, the husband.

The evidence shows that the adversary respondents, John McMillan and his wife, Martha, have been in the exclusive possession of the land since 1903, and the burden is upon complainants to show a common title by showing that Mahala McMillan was the owner in her lifetime.

We have examined the evidence with great care. Much of it was illegal and inadmissible, and was duly objected to. So far as the direct testimony is concerned, it is about evenly balanced as to weight and credibility. The circumstances, however, including the conduct of the parties, and their relations to the land since the death of Aberdeen and Mahala McMillan, Incline us strongly to the conclusion that the land belonged to Aberdeen and not to Mahala. Taking the evidence as a whole, it falls very far short of meeting the burden of proof that rests upon complainants, and we are constrained to hold that the trial judge erred in granting relief.

Let the decree be reversed, and one be here rendered, denying the relief prayed for and dismissing the bill of complaint.

Reversed and rendered.

ANDERSON, O. J., and GARDNER and THOMAS, JJ., concur.  