The comet., 1880-04-24

are value. would result in giving to the
complainants, each about $50 acres, and to
each heir of Shields about 151 acres. Com
plainants filed this bill in October, 1879
for partition. They set out the Inequalities
of the several shares, and insist that no di-
vision can be made under the statute They
however, ask for partition, II 1t can Dc
made; and if it cannot, they ask for sale
of the land, and division of the proceeds
The widow answered resisting sale, ana
stating that partition could easily be
made into two parts, so as to give compiaih
ants their interest Jointly rs they purchased
from Dyas, and the heirs of Shields their
interest also jointly. She insisted also that
such partition would be beneficial to the
heirs, and sale would be prejudicial to
them. The infants, by guardian at ttem,
filed the usual formal answer. The depo'
sition of Il witness was taken on behalf OIL
the complainant who stated that the land
not be divided among the several parties III
the mode pointed out by the statute, since
the shares of the several owners were un-
equal.
The Chancellor decreed that commission
ers be appointed who will set off to the
complainants in SOlido, fifteen hundred and
ninety-one and one-haf twenty-five hun
dredths of the land, and the remainder to
the heirs of Shields.
From this decree the compainants ap-
pealed.
Carson IL Shields for appellants.
NJ. Green for appellee.
GEORGE, I. j.,
HeId-
/. The complainants in the bill, and in their
arguments here, proceed on the luea at tiat lMl
the mode, pointed out in Code OF 1911, On.
2G, D. 1856, ct seq. for the partition OF estates
held by co-tenants is exclusive, and that
when partition cannot be made In that par
ticular way, no partition i'll kind can be
made at ali, and the land must necessarily
be sold, and the proceeds divided. we 90
not consider this view correct. The statute
provides for partition by allotment
through ballots, and manifestly the mode
can he adopted only when the shares of the
co-tenants are equal. If it be held that
tbis mode is the only one that court OF
equity may pursue in making partition IL
would be to deny the right OF partition Ill
kind at all except in cases when the CO.
tenants shares are equal.
2. The error of the position of complain
ants has its foundation in the supposltlon
that the jurisdiction of the Chancery Court
in pvrtition proceedings rests solely upon
the statute. This jurisdiction is very
ancient in courts of equity, antedating the
reign of Elizabeth, and is now and has been
for a long time one of their most useful ana
salutary powers.
8. At common law courtssof law had no
jurisdiction to order partition, except
among coparceners. JOINT tenants ana
tenants in common were without remedy
in this respect The remedy in courts of
law was extended to other cases than CO.
parceners by statute.
4. None of the English Statutes are in
force in this state; and as the statute under
consideration, 2 1911 of the Code, vests the
sole and exclusive jurisdiction in partition
proceedings in the Chancery Court, it
would follow, even if it were conceded
that the Legislature could not divest the
common law jurisdiction of the Circuit
Court, that there would be no remedy in
cases of partition in common law courts
except among coparceners. If the position
contended for by appellants be correct,
there would be none in any kind of CO.
tenancy, except only when the shares were
equal.
5. If the statute under consideration is
constitutional, in diyesting recognized
power from the common law courts, then
if it be also exclusive as to the mode
pointed out in the statute, it would follow
that no partition could be made except
when the shares are equal. And If not
withstanding the statute, the common law
courts retain their ancient common law
power to make partition, then there would
be no remedy for u partition when the
shares are unequal, except only in cases
where the co-tenants were eoparce;ners.
ature intended such a result. The right
of a co-tenant to have his share ascertained
and set apart to his separate use is said to
be absolute; to be recognized and enforced
by the courts under all circumstances,
however inconvenient and injurious It's eX-
ercise may be to the others interested.
7. At common law, and by the general
principles of equity jurisprudence, there
was no power to make sale for partition.
The power to order u sale is purely statu-
tory, and can only be exercised in the
cases provided by statute.
s. Section 1929 of the Code only author
ize a sale "when from the nature and con-
dition of the lands,' and the number, mot
the inequality, of the shares into which
they must be divided, it is impossible to
make partition thereof fairly and equally
"withOut impairing the value of the
property"
8. 1t is said the decree is erroneous in
ordering a division to be made into two
tracts, one for complainants and one for
the heirs of Shields. As to the latter,
they are making no complaint of the decree.
They are minors and incapable of making
an election as to whether they would have
partition among them of the shares allotted
to them jointly or not. The court found
that it would be to their interest in this
proceeding to have their share set off 5n
S0tSd0 as against the share of the complain
ants. This appears to have been wise
and proper decision for them and the |
mother who has right of dover in their
interest.
AS to the complainants, if we are to re-
gard them as we think we must under the
bill, as asking for separation of their sew
eral interests, they have the right to have
the partition, and the decree is proper
step in that direction.
10. After complainant's joint share shall
be set apart and the division confirmed by
the court, it will be proper Oh the motion
of either or all of them to appoint new
commissioners to make partition of their
common share among the separate owners;
and when this is done, as their shares will
be equal, 1t Will be proper that the allot-
ment shall be by ballot.
IL. We announce as the true rule on
the matters in the controversy here, that
the jurisdiction of the Chancery Court to
make partition in all cases of a co-tenancy,
results fromits original powers andi not de-
rived from or dependent on the statute, that
the provisions of the Code regulating the
in partition are applicable only
to cases where the shares of the co-tenants I
ire equal, and where, also, no equitable
exists which would require,
n order to secure a right recognized by
courts of equity in any one interested in
ne common property, that different mode
If partition shall be adopted; that the COM
claimants right to have his share set off is {
lbsOlute; but this right does not carry 6
With 1t the power to force separation of |
he interests of others who are willing to $
lold the property in common between '
II. When there are several claiming under
common source, where separate interests
mong themselves are equal, but unequal E
IS compared with the other co-tenants, the :
court may, in making partition, have their :
interests set off together in the first in y
tance, and then proceed to have IA parti- l
ION OF their common interest among them r
y allotment, by ballot as required by the i
tatute; that this mode is to be pursued in d
II cases when applicable, but is not exclu- =
i've, and may be departed from when me- :
essary. II
Affirmed and remanded to be proceeded +
With according to flp nt.inai nIos IF th;. ! q