7051

#### RIVERS v. ATLANTIC COAST LUMBER CORPORATION.

Pahtitiok — -Timbes.—There being no showing which would justify this Court in overruling the conclusions of the Circuit Court, its decree that the standing timber should be sold with the land and a reference ordered to ascertain the value of the interest in the timber owned by one party, sustained.

Before Memminger, J., Berkeley, February, 1908.

Affirmed.

Action by Henrietta M. Rivers against Atlantic Coast Lumber Corporation, Frances D. McCay, Ella Kinard and Annie Andrews. From- Circuit decree, defendant, Atlantic Coast Lumber Corporation, appeals.

*Messrs. Willcox & Willcox, DeGrand G. Walker*and *Henry B. Davis,*for appellant.

*Mr. Davis*cites: *Timber should have been set apart to appellant in kind:*Freeman on C. & P., secs. 424, 537; 2 Strob. Eq., 145; 24 S. C., 594; 4 Pom. Eq., sec. 1390; 21 Ency., 1199; 93 Ala., 85; 101 Ala., 183; 2 Ind. Eq., 607; 2 Jones Eq., 66; 69 N. C., 522; 49 Conn., 517; 11 Heisk., 669; 26 Md., 23; 3 So., 581; 75 Miss., 667; 8 Cow., 361; 37 W. Va., 143; 21 Ency., 1202. *Timber should have been sold separately:*12 Rich., 314; 2 Strob. Eq., 145; Freeman on C. & P., secs. 436, 537; 62 S. C., 482.

*Messrs. Jeruey & Cohen*and *W. A. Holman,*contra.

No argument furnished Reporter.

November 16, 1908.

The opinion of the Court was delivered by

Mr. Justice Jones.

This action is for the partition of lands in Berkeley county, composed of several tracts, aggre*493gating thirty-seven hundred and sixty-four acres. Charles G. McCay died in April, 1879, seized of the lands described in the complaint. By his will the lands were devised to Thomas A. McCay for life, and upon his death to his children then surviving. Thomas McCay died November 1, 1905, leaving surviving him his daughters, Henrietta M. Rivers, plaintiff, and Frances D. McCay, Ella Kinard and Annie Andrews, defendants, and a son, Charles FI. McCay, who conveyed his interest in the land to the defendant, Atlantic Coast Lumber Corporation, thus entitling each of the parties to one-fifth interest in the lands. It further appears that on February 28, 1907, the plaintiff conveyed to the defendant, Atlantic Coast Lumber Corporation, her one-fifth interest in all the pine timber standing and fallen of ten inches stump diameter and upwards twelve inches from the ground at the time of cutting, with right of way, etc., on 492 acres of the lands known as the McCay Reservation. The Atlantic Coast Lumber Corporation also owns the timber on all of the McCay lands, other than the McCay Reservation.

By consent of all parties the master appointed' five disinterested persons to go" upon the premises and report whether or not the property could be divided in kind. This committee went upon the premises, and recommended that the property be sold in five parcels. Thereupon the master made a report recommending the sale, first, of the timber on the reservation of 492 acres, and then the sale of the five subdivisions of the property in question, as they appear on what is known as the Richardson plat. The master further recommended that out of the proceeds of sale there be deducted from the interest to which Henrietta M-. .Rivers would have been entitled the amount of money paid to her by the Atlantic Coast Lumber Corporation, for her interest in the timber on the McCay Reservation, and that the remainder of the proceeds of sale of her one-fifth interest in the entire property be paid over to her or her attorneys.

*494The matter came up before Judge Memminger, the only question at issue being the proper method to- make partition of the reservation tract of 492 acres. Judge Memminger held that it would be impossible to partition the land in kind without injury to one or more of the tenants in common. Judge Memminger disagreed with the master as to the sale of the timber on the McCay Reservation tract separate from the land, and ordered a sale of the said tract, with the timber thereon. He further directed that the proceeds arising from the sale of the one-fifth interest of Henrietta M. Rivers be held by the master, and ordered a reference to determine the relative value of the timber and the land, so that the Court might make the proper division between Mrs. Rivers and the Atlantic Coast Humber Corporation.

Under exception to this decree the Atlantic Coast Humber Corporation now contends (1) that its interest in the timber should have been set apart in kind; (2) or that all the timber on the reservation tract should have been ordered sold and proceeds divided among the parties according to their respective rights.

It is true that partition is a matter of right and not of grace, and that the Court favors partition in kind when it can be fairly so made without injury to any other parties in interest, — indeed sec. 2437 of the Civil Code so directs,— but in this case the commissioners, the master and the Circuit Court all concur in the view that it is impracticable to partition in kind, and there is no such showing as would justify this Court in overruling such conclusion.

As an estate in trees may exist independently of the estate in the land, and is the subject of partition *(Knotts*v. *Hydrick,*12 Rich., 314; *Steedman*v. *Weeks,*2 Strob. Eq., 145), it is within the power of the court of equity to sell the timber separate from the land, but the Court is not bound to do so in all cases. The partition -sought in this case involved a sale of both land and the timber thereon, and such has been ordered. If Judge Memminger consid*495ered that a sale of the land, with the timber, was the best means of realizing the full value of the property, we find nothing in the record to show reason for a different conclusion. Having determined that it was best to sell the land and timber together, it was proper to order a reference as to the relative value of land and timber, with a view to adjust partition between the parties.

The judgment of the Circuit Court is affirmed.