[Austin et al. v. Bean, Executor, et al.] H. Austin sold first, in payment of the mortgage debt made for W. H. Austin's benefit.-Sewell v. Henry, 9 Ala. 24; Gaffney v. Hicks, 124 Mass. 303; White v. Brocaw, 14 Ohio St. 339; 2 Devlin on Deeds, §845; Leach r. Leach, 58 Amer. Dec. 645. (2.) The exchange operated merely as partition does as to personal obligations resting upon either of the parties remaining, and, as to the land, would be transferred to the part acquired by the party owing the debt or resting under the obligation. Rawle on Covenants for Title, 406 and note; Rector v. Waugh, 17 Mo. 13; Dawson v. Lawrence, 42 Amer. Dec. 210; Harrison v. Ray, 108 N. C. 215, 23 Am. St. Rep. 57. (3.) (3.) The covenant of Mrs. Roper in her warranty deed to W. H. Austin can not be considered to embrace an incumbrance which the said Austin had agreed to discharge, and which could not have been asserted against the land had it continued to be hers, and which becomes a charge on the land conveyed by her alone by the default of W. H. Austin.-Fitch v. Baldwin, 17 John. 165; Watts v. Welman, 2 N. H. 460; Furness v. Williams, 11 Ill. 240; Silverman v. Loomis, 104 Ill. 137; Smith v. Camell, 32 Me. 123; Brown v. Stapels, 28 Me. 497. E. W. GODBEY, contra.-(1.) The partition proceedings concluded every right any of the parties thereto had in and to the lands partitioned.-Freeman on Co-tenancy & Partition, 531; Reese v. Holmes, 5 Rich. Eq. 540; Herr v. Herr, 5 Pa. St. 428; Burghardt v. Van Dusen, 4 Allen 374; Forcroft v. Barnes, 29 Me. 128; Kain v. Rock River Coal Co., 15 Wis. 129. (2.) Those proceedings vested the title in fee simple in each of the Austin heirs, as fully and completely as if each had conveyed to the others.-Code, $3246. Fee simple is a pure inheritance free from conditions, and is absolute so far as it is possible for one to possess an absolute right of property in lands.-4 Kent's Commentaries 5; Tiedeman on Real Property, 23. (3.) The conveyance by Mollie Roper and husband, with full covenants of warranty, to W. H. Austin, prior to the mortgage to Armitage-Herschell Co. of the lands conveyed by that mortgage, executed by W. H. Austin, cut off and extinguished all her right and title, legal and equitable, in and to, said lands and forever estopped her.-Barclift v. Lillie, 82 Ala. 319; 2 So. Rep. 120; Hargrave v Melbourne, 86 Ala. 270, 5 So. Rep. [Austin et al. v. Bean, Executor, et al.] (4.) Mollie 285; Chapman v. Abraham, 61 Ala. 108. Roper and Chas. H. Austin, being joined in the cross bill with Taylor Austin, and the two former showing no right whatever to the relief prayed in said cross bill, the same was properly dismissed, irrespective of whether the said Taylor had intrinsically any right to relief or not. All must recover, or none can.-Hubbard v. Allen, 59 Ala. 283, 301. (5.) The equity sought to be set up by the Austin heirs against the land mortgaged by W. H. Austin to Armitage-Herschell Co. required a cross bill and could not be asserted by answer.-Bedell v. New Eng. Mortg. Sec. Co., 91 Ala. 328, 8 So. Rep. 494; Weaver v. Brown, 87 Ala. 537, 6 So. Rep. 354; Whitfield v. Riddle, 78 Ala. 99. (6.) Owen and Morgeson, as mortgagees of W. H. Austin, were bona fide purchasers without notice.-Mobile Life Ins. Co v. Randall, 71 Ala. 220; Whelan v. McCrary, 64 Ala. 329; Coleman v. Smith, 55 Ala. 376; Rogers v. Adams, 66 Ala. 602; Craft v. Russell, 67 Ala. 9. (7.) As transferee of that mortgage Armitage-Herschell Co. is entitled to the same protection against latent equities as Owen and Morgeson.-Calahan v. Monroe, Smaltz & Co., 56 Ala. 303; Horton v. Smith, 8 Ala. 73; 2 Brick. Dig., 520, § 192. (8.) Armitage-Herschell Co., as bona fide purchasers of the negotiable notes executed by W. H. Austin to Owen and Morgeson, are entitled to protection against latent equities supposed to affect the mortgage security for the notes.-Spencer v. M. & M. R. Co., 79 Ala. 586; Hawley v. Bibb, 69 Ala. 52; Wildsmith v. Tracy, 80 Ala. 258. HEAD, J.-Wm. H. Austin, Taylor Austin and Mollie Roper, nee Austin, acquired by descent from their father, Virgil Austin, deceased, 396 acres of land, described in the bill. This land, at the death of Virgil, was encumbered by a mortgage which he had executed thereon to John D. Rather for $1,262, which debt and mortgage, by assignment, became the property of B. F. Bean. The note which the mortgage was given to secure was executed by said Virgil and his son, the said Wm. H. Austin, so far as the note itself discloses, as principal debtors. Virgil Austin died in 1885. On the 3d day of October, 1887, Wm. H. Austin instituted proceedings in the probate court of Morgan county, wherein the lands lay, against his said brother and sister, Taylor Austin [Austin et al. v. Bean, Executor, et al.] and Mollie Roper, for partition of the lands between himself and them under the provisions of the Code, Article 1, Chap. 17, Title 2, Part 3. The proceedings were had and conducted, in every respect, conformably to the statute, and resulted in partition, under proper decree, on the 12th day of December, 1887, the share of each being allotted and set off to him or her in severalty, of which due record appears. Immediately after this allotment, the said Wm. H. and Mollie exchanged shares, each conveying to the other, by separate deeds, with general covenants of warranty, the land which had been allotted to him or her, respectively, the husband of Mollie joining with her in her conveyance. On the 24th day of June, 1890, the said Wm. H. Austin and wife, to secure an indebtedness of $2,000, presently contracted, executed to Owen & Morgerson a mortgage on the lands acquired by him by exchange with his sister; which debt and mortgage were subsequently assigned for value to Armitage-Herschell Co. In March, 1889, said Mollie Roper sold to Chas. H. Austin three acres of land she had acquired by the exchange, and he went into possession of, and improved, the same. In this status of the land, the complainant, L. G. Bean, as executor of B. F. Bean, deceased, filed this bill to foreclose the said Rather mortgage, bringing all the said interested parties before the court as defendants. Mollie Roper and husband, and Wm. H. Austin and Chas. H. Austin answered, separately, setting up that the mortgage sought to be foreclosed was executed by Virgil Austin to secure the payment of money borrowed from Rather for the exclusive use and benefit of said Wm. H. Austin, who received and used the same for his own purposes, the said Virgil becoming by the execution of the note and mortgage, in fact, merely the surety of Wm. H., who was, in fact, the principal debtor; and insisting that the land acquired by him by virtue of the allotment and exchange, aforesaid, be first sold in ease or exoneration of the portions of the land acquired by the said Mollie and Taylor Austin. Taylor Austin, being non compos mentis, defended by guardian ad litem, who, by answer, denied all the allegations of the bill. Mollie Roper, Taylor Austin, by next friend, and Chas. H. Austin, also, jointly, filed a cross-bill to marshal the assets, praying the prior sale of Wm. H. Austin's share [Austin et al. v. Bean, Executor, et al.] of the land in exoneration of the rest. This was answered by the Armitage-Herschell Co., setting up the said partition proceedings and exchange, the execution and their acquisition of the Owen & Morgerson mortgage, denying the alleged suretyship of Virgil Austin, and insisting that they were bona fide purchasers, without notice of the alleged equity. They also answered the original bill; and, making their answer a cross-bill, set up the same facts, as those set up in their answer just mentioned, and prayed that the lands of Mollie Roper and Taylor Austin be first sold, in exoneration of the lands of said Wm. H., upon which they hold their mortgage. This relief, however, was denied by the chancellor, and is not insisted on, and may not be further noticed. The controversy then is between Mollie Roper, Taylor Austin and Chas. H. Austin on the one side, and Wm. H. Austin, Owen & Morgerson and the Armitage-Herschell Co. on the other, and turns upon the equity of the cross-bill filed by the former. It appears, however, that Wm. H. Austin is friendly to the purpose of the cross bill. The sufficiency of this cross-bill was tested by demurrer interposed by the Armitage-Herschell Co., the important grounds of which are, that any equity the complainants therein may have had to marshal the assets as prayed, is cut off and barred, first by the said proceedings in partition, and secondly, by the conveyance in fee with warranty of Mollie Roper and husband to Wm. H. Austin, their mortgagor. It is most manifest our statutory system of partition. of lands between joint owners or tenants in common makes no provision for adjusting equities which may subsist in favor of the owners upon, or in respect of, the joint or common property. It is a system whose whole purpose and scope are to effect, by easy and expeditious methods, the division of the property into as many equal shares, in value, as there are owners, and the allotment of one share to each; and to convert the previously existing unity of title and possession into titles and possessions in severalty. In order to the exercise of the jurisdiction, the interest of each owner must be the same, and the partition must be made by lot. There is no intention in the statute, or jurisdiction conferred upon the probate court, to settle conflicting claims of title, whether [Austin et al. v. Bean, Executor, et al.] affects legal or equitable; on the contrary it is expressly provided that no division or partition can be made under the statute, when an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners, or of the judge of probate.-Code, § 3251. The further express provision is made, that, "When there is a lien on an individual interest of any of the parties, such lien, if a partition is made, is thenceforth a charge only on the share assigned to such party."-Code, § 3247. Beyond this, partition, under the statute, no lien or equity, whether existing in favor of a co-owner or third persons. Section 3246 provides, that "the partition so made vests a title in fee-simple in the person to whom the several shares are allotted, as fully and completely as if each had conveyed to the others; but if any fraud or undue influence be employed by any of the parties, to obtain an unfair partition or allotment, such partition may be annulled by the chancery court on bill filed within five years after the allotment." It is contended that this provision visits upon the partitioners the same effect which would attach to a grantor of lands by his voluntary execution of a deed of bargain and sale to a grantee; and that as such a deed would estop the grantor from asserting any equity upon the land then existing, or which might grow out of conditions them existing, so the statute estops the partitioner from a like assertion. The argument is, that though the probate court confessedly can not take cognizance of, and settle such rights, by its decree of partition, yet a party to the proceeding, invested with such rights against his coowner, may, by resort to equity, arrest the probate court in the exercise of its jurisdiction, have all parties in interest brought before the court of equity and partition made upon the basis of a settlement of all rights, legal and equitable, of all the parties. We do not think it is so contemplated by the statute. Limited as the jurisdiction of the probate court is in the matter of partition, and considering together the several provisions of the whole chapter upon the subject, it is clear there was no intention to enlarge the estates or interests of the several owners, when reduced to a severance of the ownership and possession, by attaching thereto, such an implied warranty on the part of each owner in favor of the others as will cut off equities in favor of and against each |