Opinion
10-28-1885
JACKSON v. BEACH and others.
Mr. Halsey and H. C. Pitney, for complainant. Theo. Little and Neighborn & Smith, for defendant.
On bill for partition.
Mr. Halsey and H. C. Pitney, for complainant.
Theo. Little and Neighborn & Smith, for defendant.
BIRD, V. C. At the hearing of this case I decided that a party defendant, who owns more than three-fourths of the land described in the bill filed for partition, is not entitled to have his interest set off to him in land because the balance of the land is owned by so many as tenants in common that it is impossible to make partition thereof amongst them without great prejudice. I came to this conclusion because I thought the practice forbade any other. It is plain that part can be divided and part sold; but I could find no authorities for deciding that the interest of one or more of the tenants can be sold and the interest of one or more set off in land. I hesitated in coming to such a conclusion, and am now convinced that I was wrong. I think that the interest of one tenant in common may be set off to him in land, even though the balance of the land is held by so many as tenants in common that it will be to their interests to order a sale of their shares. Haywood v. Judson, 4 Barb. 231, sustains this view. Since the decree has not yet been advised, I think it is my duty to advise in accordance with this view. During the hearing it appears that the bill in this case only described a part of the land held by the tenants in common, leaving unnoticed a large tract. I suggested that this fact might prove embarrassing upon the question of partition, since the larger the quantity of land held in common the greater the probability of division without prejudice. Other considerations were named by the court or advanced by the counsel of the defendant Beach; and, as a consequence, time was given for counsel to present their viewson briefs. After a very careful and, I think, full research, I can find no authorities sustaining the view that all the land held in common must be included in the same bill. I believe there is no case establishing such a practice in England; and, while this is the first case which I have any knowledge of in this state in which less than all the lands have been sought to be partitioned in the same bill, I find nothing to warrant me in saying, as the case now stands, that the complainant must fail unless he asks for a partition of all. If a party in interest conceives that he will suffer because a portion of the lands held in common have been omitted, he has a plain remedy. By proper pleading he can have all the land so held disposed of in one suit and for one bill of costs. I think such pleadings essential to move the court. Unless the defendant asks for leave to take other steps in order to secure a partition or sale of all the lands, I shall advise a decree appointing commissioners, so to divide the lands described in the bill as to set off to the defendant Beach his share, and sell the balance.