
    Bullock v. Knox.
    
      Bill in Equity for Partition of Land, and for Relief - against Trespasser.
    
    1. Evidence to rebut presumption of legitimacy from birth during marriage. — The presumption of legitimacy from the birth of a child during marriage may be rebutted by evidence which shows that the husband could not be the father of the child; and where a mulatto child is born of a white woman whose husband is a white man, it is competent to show that it is contrary to the laws of nature for both the parents of a mulatto to be persons of the white race, and it is not improper to receive the testimony of scientific experts upon the inquiry.
    2. Equity pleading ; multifariousness. — A bill in equity is multifarious which seeks a partition among the true owners of land, and also a settlement of their legal claim against one who, the bill alleges, has no interest in the property, but who, without right, has been in possession, in common with the true owners, receiving rents and profits.
    3. Partition of land; issue out of chancery as to defendant’s title. — The statute (Code, § 3588), providing that in suits for the partition of lands, if the defendant denies the title of the complainant, the bill need not be dismissed or delayed until a trial can be had at law, but that the issue as to the title of the complainant may be directed to be tried as other issues out of chancery are triable under.the statute, does not cover the case of a contest as to the title between a complainant claiming to bé one of the real owners of the property and a defendant who, as the bill alleges, has no interest in it.
    Appeal from the Chancery Court of Lowndes.
    Heard before the Hon. John A. Fostee.
    The original bill in this case was filed June 19, 1891, by William W. Knox, against Fanny Allums, J. E. Holmes, Ben Knox, a minor over the age of fourteen years, and W. P. Bulloch, the guardian of said Ben Knox; and prayed (1) that a decree be made declaring that said Ben Knóx has no right, title, claim or interest in the lands described in the bill; (2) that said Bullock, as the guardian of Ben Knox, be required to account for the amounts of rents from said land/ received by him for his ward, Ben Knox, and that a decree be rendered against him for such amount, in favor of the complainant and the defendant Fanny Allums; and (3) that the land and the money received by Bullock as rent, be partitioned and divided between the complainant and said Fanny Allums, in equal shares. The bill alleged that the defendant Holmes claimed an interest in tbe land described, under a conveyance from tbe complainant.
    Tbe defendant Bullock demurred to tbe bill, assigning tbe following, among other grounds: (1.) “Tbat it appears by tbe said bill tbat tbe same is exhibited against this respondent and J. E. Holmes, Ben Knox and Eanny Allums, for distinct matters and causes, in several whereof, as it appears by said bill, this respondent is not in any manner interested or concerned, and tbat said bill of complaint is altogether multifarious.” (2.) “Tbat it appears, by said bill that the complainant and this respondent do not jointly or in. common bold undivided interests in said land.” (3.) “That it appears by said bill tbat this respondent has no such interest in said lands as tbat be can be made a party defendant to said bill of complaint.”
    Ben Knox, by bis guardian, demurred to tbe bill, assigning tbe above stated grounds, and also tbe following among others: (1.) “Tbat it appears by said bill tbat tbe complainant has a clear, adequate and complete remedy at law for all rights which be seeks to enforce against this respondent in ana by said bill of complaint.” (2.) “Tbat tbe complainant has no right to repudiate, or disavow, 'or call in question tbe filiation of this respondent.” (3.) “Tbat it appears in and by said bill tbat more than ten years have elapsed since the death of Wilson Knox, and tbe final settlement of bis estate, and tbat tbe complainant can not now disturb or question tbe filiation of this respondent to Wilson Knox.” (4.) “Tbat this court is without tbe power to inquire into the filiation of this respondent to Wilson Knox, on tbe facts stated and contained in said bill of complaint.”
    Tbe appeal is from tbe decree of tbe Chancery Court overruling each of these demurrers.
    J.- C. EichaRDSON, for appellant,
    cited Eloi v. Mader, 33 Amer. Dec.; ■ Hemmenway v. Towner, 1 Allen, 209 ; Egbert v. Greenwall, 38 Am. Eep. 260; Weatherford v. Weatherford, 56 Am. Dec. 206.
    CLEMENTS & Bkewee, contra,
    
    cited Watkins v. Garitón, 10 Leigh (Va.), 560; 2 Kent’s Com. 211; Tindal v. Drake, 51 Ala. 574.
   WALKEE, J.

The bill in this case prays for a partition among tbe heirs of Wilson Knox, deceased, of certain land owned by him at tbe time of bis death. It is alleged that tbe complains®! is a son, and tbat tbe defendant Eanny Albums, wbo is the wife of J. B. Albums, is a daughter of Wilson Knox and bis wife Amanda, wbo afterwards married one Stewart. Tbe complainant claims tbat no other person is entitled to an interest in tbe land as an heir of Wilson Knox. Tbe bill shows, however, tbat a one-third interest in tbe land is claimed for one Ben Knox, a minor, on tbe supposition tbat be also is a son of tbe decedent, and tbat tbe guardian of Ben Knox has been in possession of tbe land in common with tbe real heirs and has been receiving one-third of tbe rents. In reference to this claim in behalf of Ben Knox, tbe bill charges, “that said Ben Knox is a son of said Amanda Knox, alias Stewart, by an adulterous intimacy with a mulatto negro named Martin Knox, or some other mulatto negro, and orator denies tbat said Ben Knox is tbe son of said Wilson, and denies that said Ben is entitled to any share or portion or interest in said lands in any manner whatsoever, as orator further avers and charges tbat said Wilson and said Amanda were white people and of tbe white race, and said Ben Knox is a mulatto negro.” It is plain tbat tbe claim of Ben Knox as an heir is assailed, not on tbe ground tbat be was not born in lawful wedlock, but on the ground tbat be was not in fact, and could not have been, the son of Wilson Knox, bis mother’s lawful husband. Ben Knox and bis guardian are made parties defendant. Tbe bill prays tbat tbe guardian be required to account to tbe complainant and Mrs. Allums' for tbe amount of tbe rents of tbe land in question received by him for bis ward; and tbat a decree be made tbat said Ben Knox has no right, title, claim or interest in said described lands, and is not entitled to any portion or share in. tbe same. Tbe appeal is from tbe decree overruling tbe demurrers of Ben Knox and of bis guardian, Bullock, to tbe bill as amended.

It may be inferred from tbe averments of tbe bill, though it is not clearly shown, tbat Ben Knox was born while bis mother and Wilson Knox were wife and husband, and tbat, therefore, tbe presumption is tbat be is tbe legitimate son of Wilson Knox. Tbe questions to be considered are: On tbe averments of tbe bill as amended is Ben Knox to be treated as a son and lieir of Wilson Knox, deceased? and, Do tbe existence of tbe claim in behalf of Ben Knox and tbe receipt of rents by bis guardian render them proper parties to tbe bill for partition, for the purpose of decreeing tbat Ben Knox is not entitled to any interest in tbe land sought to be partitioned, and to require bis guardian to account to tbe true heirs for tbe share of tbe rents received by him?

The ancient common-law authorities declared the issue of every married woman to be legitimate, except in the two special cases of the impotency of the husband and his absence from the realm. In the present case the complainant specifies the fact which is relied on to support the conclusion that Ben Knox is not the son of Wilson Knox, deceased. That fact is that Ben Knox is a mulatto, while his mother was a white woman, and his mother’s husband was a white man, and of the white race. The inference is excluded that the charge of illegitimacy rests either upon the impotency of the husband or upon the impossibility of his access to the wife during the period when she became pregnant. If the rule above stated prevails, the particular case alleged in the bill is not one in which the law- permits the presumption of legitimacy to be disputed, and Ben. Knox must be treated as the son of his mother’s husband. But' that rule has long since been exploded. It operated .in many cases to make -a man in law the father of children who were obviously not his in fact. The rule was first relaxed by permitting- the conclusion of .illegitimacy to be drawn in certain other special classes of cases in which legitimacy -was impossible. It was seen that there were other cases, not included in the common-law classification, in whidh it was impossible that the husband could be the father- of a child born of his wife during their marriage. Finally, the simple rule was recognized that a child is a bastard,- though born, or begotten and born, during marriage, when it is impossible that its mother’s husband could have been its father; and that every species of legal evidence tending to this conclusion is' admissible on the trial of the issue as to its legitimacy. The question of legitimacy is simply one of fact. The modern authorities sustain the propositions, that the presumption of legitimacy from the birth of a child during marriage may be rebutted by evidence which clearly and conclusively shows that the procreation by the husband was impossible; and that it is competent • to show that, according to the course of nature, the husband could not be the father of the child, as where a mulatto child is born of a woman of the white race whose husband is also of the white race. That is the case here. We are satisfied that it is competent for the complainant to show by proof that it is contrary to the laws of nature for both the parent's of a mulatto to be persons of the white race. It may be that the court would be justified in recognizing such impossibility as a matter of common knowledge. No harm could be done, however, in receiving the testimony of scientific experts upon tbis inquiry. — Watkins v. Carlton, 10 Leigh (Va.), 560; Cross v. Cross, 3 Paige (Ch.), 139; 23. Amer. Dec. 775; Head v. Head, 1 Sim. & Stu. 150; 2. Kent’s Com. 211; Schouler’s Domestic Relations (4th.Ecb), p. 225; 2 Amer. & Eng. Encyc. of Law, 136-9; 13 Ib. 224-5. On the averments of the bill, Ben Knox is to be treated as a. bastard, and not an heir of his mother’s husband, Wilson Knox, deceased. ■ ■

It follows that Ben Knox has no interest in the partition of the land in question. Partition is a matter between the persons interested in the property to be partitioned. The adverse claim of a stranger who in fact has no interest in the property is a matter foreign to the partition of it among the real owners. “In suits for the partition of lands, if the defendant denies the title of the complainant, the chancellor need not dismiss the bill or delay the suit until a trial can be instituted and had at law, but may direct the issue as to the title of the complainant to be tried as other issues of fact are triable, according to the three sections next proceeding.” — Code, § 3588. This statute provides for the trial of an issue as to the complainant’s title made by a defendant who is conceded to be interested in the partition but who denies the interest of the complainant. It is not intended to cover the case of a contest between a complainant who is one of the real owners of the property and a mere stranger who lias no interest in it. Such an adverse cl&i-in by a stranger is simply an obstacle to the possession and enjoyment of the property by the true owners. Their title can be asserted and settled at law. Legal remedies are adequate to protect their right of possession, and to compensation for rents received by a mere intruder. The partition between the true owners and a contest between them on the one hand and a stranger on the other hand, who sets up an unfounded claim to an interest in the property, are distinct matters which have no connection with each other. In one of them, the matter of partition between the true owners, the adverse claimant has no interest. He can not be brought into a controversy in which he is in no way concerned, merely for the purpose of an adjudication that his claim is unfounded. A bill is multifarious which seeks a partition among the true owners of land, and also a settlement of their legal claim against a mere intruder who, it is alleged, has no interest in the property, but has been in possession without right and in receipt of rents and profits. The demurrers on the ground of multifariousness would have been sustained. — West v. West, 90 Ala. 458; McEvoy v. Leonard, 89 Ala. 455; 3 Brick. Dig. 387-388. Tbe case of Tindal v. Drake, 51 Ala. 574, is not an authority for making an adverse claimant a party defendant to a bill for partition, for tbe purpose of- adjudicating bis claim. It appeared intbat case • that tbe 'defendant who demurred bad an interest in tbe partition, .which was tbe main purpose of tbe suit.

If the bill shall be amended and it shall still appear that tbe true owners of tbe land are not in exclusive possession, but are disseized in part by a mere intruder, as such case is not covered by tbe provision of tbe statute in reference to tbe trial of tbe issue as to tbe title of tbe complainant when it isdeniedby a defendant who is properly a party to tbe suit for a partition, perhaps it is covered by the rule which prevailed before the enactment of tbe statute. The practice under that rule, in the' case of an adverse bolding, was to stay proceedings, until tbe questions ‘of title and possession could be determined at law. — 2 Brick. Dig. 294; Freeman on Cotenancy and-Partition, § 447. This question, however, is not decided, as it is not presented on this appeal.

Reversed and remanded.  