LIVINGSTON, Chief Justice.
This appeal is from decrees sustaining the demurrer of Aluminum Company of America and the demurrer of O. B. Smith and Claude Smith to the bill of complaint as amended.
The bill alleges, in substance: That Joseph I. Smith, who died intestate on the 27th day of October, 1950, was the owner of the real estate in controversy, and that the complainants and respondents, with the exception of Aluminum Company of America, are the sole surviving heirs at law of said Joseph I. Smith; that Claude Smith, respondent, was appointed administrator of the estate of Joseph I. Smith by the Probate Court of Barbour County, Alabama; that O. B. Smith, respondent, either alone or in conspiracy with said administrator, effectuated a fraud on the other joint owners, in that he convinced them that the administrator was incompetent and promised to watch over the administration, and further that said realty should be sold at a public sale to pay the debts of the estate; that complainants and respondents agreed that said realty should be sold, but that the mineral rights therein would be reserved to said heirs; that complainants relied on the representations and promises of the respondents, and paid no attention to, and made no appearance at the proceedings instituted in the probate court by the administrator to sell said realty; that the administrator, instead of performing said agreement, offered for sale and sold said property without reserving the mineral rights; and that said O. B. Smith, respondent, purchased said property in his own name and procured a deed without reservation of the mineral rights. It is futher alleged that O. B. Smith, respondent, before and at the time of said sale, was familiar with the lands in question, having lived on and farmed the lands for many years; that at the request of the administrator, who was his brother, O. B. Smith had the timber on said land cruised by one familiar with the value of growing timber and found that the value of merchantable timber was in excess of $3,000, and falsely reported to the administrator, who relied on said report and made no independent investigation, that the value of merchantable timber was about $700; that the debts of the estate of Joseph I. Smith, deceased, amounted to only $783.39, and that the sale.
The complainants pray that a temporary injunction be issued restraining Aluminum Company of America from paying any further royalties to O. B. Smith in consideration for said bauxite until the rights and interests of the parties have been determined; and that upon a final hearing, the conveyance to O. B. Smith be set aside and held for naught, or, in the alternative, that the administrator's deed be reformed so as to give effect to the agreement of the parties. There was also a prayer for general relief and an offer to refund the purchase price.
The Aluminum Company of America demurred "to the Bill of Complaint * * * as amended, and to each and every paragraph thereof, separately and severally." O. B. and Claude Smith demurred to "the bill of complaint as amended, generally, and in each of its several aspects." This court has repeatedly held that such demurrers are demurrers to the bill as a whole. Thompson v. Hanna, 262 Ala. 467, 80 So.2d 267; First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So.2d 348. And the ruling of the lower court in sustaining the demurrers must be reversed if any aspect is good. Tyler v. Copham, 245 Ala. 151, 16 So.2d 316.
The bill alleges that the complainants and respondents were the only heirs of Joseph I. Smith, deceased, and that the realty descended to them as joint owners.
Tenants in common are in a confidential relationship to each other by operation of law as to the joint property. Caldwell v. Caldwell, 173 Ala. 216, 55 So. 515; 14 Am.Jur. 78; Annotations, 6 A.L. R. 297; 54 A.L.R. 874; 85 A.L.R. 1535; 19 L.R.A.,N.S., 591. And a cotenant cannot buy an outstanding adversary claim to the common estate and assert it for his exclusive benefit to the injury or prejudice of his co-owners. Randolph v. Vails, 180 Ala. 82, 60 So. 159; Draper v. Sewell, 263 Ala. 250, 82 So.2d 303, and authorities cited therein. However, this rule does not prevent one heir from purchasing the entire estate at an administrator's sale for the purpose of subjecting the land to the payment of the debts of the decedent. In re Reynold's Estate, 239 Pa. 314, 86 A. 858; Clapper v. Powers, 222 Miss. 878, 77 So.2d 808; Sewell v. Reed, 189 Ark. 50, 71 S.W.2d 191; 14 Am.Jur. 126. In Aubuchon v. Aubuchon, 133 Mo. 260, 265, 34 S.W. 569, 570, Justice MacFarlane stated:
In Phillips v. Phillips, 224 Ala. 321, 140 So. 434, this court held that at a sale for division a tenant in common had the right to become the purchaser and acquire title to the entire tract. See also Caldwell v. Caldwell, supra.
The jurisdiction of the probate, court to order a sale of a decedent's lands for the payment of debts is statutory, special, and limited. Robertson v. Bradford, 70 Ala. 385; Hall v. Chapman's Adm'rs, 35 Ala. 553. And the right of an administrator to sell lands to pay debts of his intestate is wholly statutory, and he alone can do so on the conditions and in the manner prescribed by the statutes. Austin v. Eyster, 242 Ala. 402, 6 So.2d 892; Ex parte Stephens, 233 Ala. 167, 170 So. 771; Kirkbride v. Kelly, 167 Ala. 570, 52 So. 660.
Sections 242-276, Title 61, Code of 1940, outline the procedure to be followed in order to perfect a sale of a decedent's realty for payment of debts or division. Section 253, Title 61, Code of 1940, provides:
In construing a similar statute, the Supreme Court of Michigan in Oberstein v. Oswalt, 47 Mich. 254, 10 N.W. 360, 361, stated:
See also Hewitt v. Durant, 78 Mich. 186, 44 N.W. 318; Daley's Appeal, 47 Mich. 443, 11 N.W. 262.
In Pelletreau v. Smith, 30 Barb., N.Y., 494, it was stated:
"* * * This, however, is not a proceeding where the various estates
However, other jurisdictions have construed similar statutes as allowing the judge of probate to sell particular estates or interests, less than the whole, which the deceased had in the property at the time of his death. See City National Bank v. City of Bridgeport, 109 Conn. 529, 147 A. 181.
In construing a statute, every word and each section thereof must be given effect, if possible, and construed with other sections in pari materia. Ex parte Darnell, 262 Ala. 71, 76 So.2d 770; City of Montgomery v. Smith, 205 Ala. 557, 88 So. 671.
Section 268, Title 61, Code of 1940, provides:
If Section 253, supra, were interpreted as meaning that the probate court could authorize the sale of any interest in the deceased's realty in order to pay the debts of the estate, such interpretation would in effect make Sec. 268 an otiosity. Therefore, it is evident that the legislature intended to empower the judge of probate to sell a part or parcel of the realty of a decedent's estate when the debts owed by the estate were not enough to require the sale of all the realty owned by the deceased at the time of his death, but the judge of probate could only authorize the sale of the entire interest which the decedent had in that part or parcel to be sold.
In 34 C.J.S. Executors and Administrators § 553, p. 502, it is stated:
Boiling v. Jones, 67 Ala. 508; Austin v. Willis, 90 Ala. 421, 8 So. 94; and Johnson. v. Porterfield, 150 Ala. 532, 43 So. 228,
In an administrator's sale of deceased's lands to pay the debts of his intestate, the court is the vendor. Kennedy v. Parks, 217 Ala. 323, 116 So. 161; Denman v. Payne, 152 Ala. 342, 44 So. 635. The probate court was without statutory authority to sell the lands reserving the mineral interest to the heirs.
We have determined that O. B. Smith had the right to purchase said land. The bill alleges the existence of debts of the estate, and for aught appearing there was not sufficient personalty to pay said debts. When there are debts of an estate and the personalty is insufficient to satisfy said debts, it is mandatory that the administrator sell the lands of the estate to pay said debts. Boyte v. Perkins, 211 Ala. 130, 99 So. 652. And, further, for aught that appears in the bill of complaint, the purchase price paid by O. B. Smith for the land in controversy was adequate, and the complainants received shares of the purchase price equal to the value of their entire interests in said lands, less the amount of the debts owed by the estate of the intestate. Hence, there was no averment in the bill which shows that the complainants were or will be injured by the alleged misconduct of respondent, O. B. Smith. In equity, as at law, with the exception of special cases in some jurisdictions, fraud will not be relieved against unless it is shown that injury resulted or will result to the complainants as a consequence of said fraud. Kelly v. McGrath, 70 Ala. 75, 45 Am.Rep. 75; Meeks v. Garner, 93 Ala. 17, 8 So. 378, 11 L.R.A. 196; Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So.2d 73; Gray v. Gray, 246 Ala. 627, 22 So.2d 21; Smith, Fraud, § 287, p. 308; 23 Amjur. 985. And for like reasons, the fact that O. B. Smith falsely reported to the administrator the value of merchantable timber on said lands does not give the bill equity.
The trial court did not err in sustaining the demurrers to the bill of complaint and the cause is due to be, and is, affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.