*1 ALMA BURKE AND OTHERS. KATE BURKE OTHERS, PETER AND BANK OF ST. COUNTY NICOLLET RESPONDENTS.1 32,566. No. February 14, 1941. Gunn, for appellants. é Osterlind, Seeger, Young Ericlcson, Kate Burke. respondent Reim, <£ Flor Bank County Nicollet of St. respondents Olsen, T. George liquidating agents. A. Pettis, and Carl L. J. Gault Peter Anthony. Maurice for respondent Anthony, L. O. N. W. 340.
1 Reported
Stone, Justice. involved in this partition action of two consisted noncontiguous tracts of farm land. One, Farm,” the “Church an area of about 100 acres with farm buildings conventional *2 character. other The tract of one as acres, about known the “Home Farm.” unique It is in that a of it has part become the of an site inland settlement known as “Norseland.” There have been erected it a store a building, garage, dwelling called the “Kate Burke residence,” “Henry another known as the Burke residence,” and still another farm tenant. There the are also a barn, granary, other farm buildings. property The as a whole is to mortgaged County defendant Nicollet Bank to upwards secure a debt of of $19,200.
The case tried by was as default of an although defendants attorney appeared had on their behalf.
Considering partition in kind impracticable, ap- one referee was pointed to sell the premises. partition If in kind had been ordered, three referees would have been necessary. Mason Minn. St. 9527. But where, as it here, § is established “that par- tition cannot had great be without to prejudice owners, the the may court order a sale of the property,” and for that purpose may appoint “one more referees.” Id. 9537. §
When the action was commenced the property belonged to plain- tiff brother, Henry and her Burke, A. in as tenants common. Henry departed Soon Burke life. thereafter, this these Thereupon appellants were substituted as defendants in his stead. Notwith- default, the initial A. Burke and standing Henry Alma his (now wife his widow and one of the appellants), interposed an they formally answer wherein asserted “that on account the * * costly improvements one of the it upon farms be would impossible and almost very property difficult divide said in neither of common kind; that said tenants would be in posi- money any this time raise sufficient wherewith pay tion at as a difference value different tracts sum of said substantial Henry A. asserted that Burke had They made “con- property.” effort” to the The property sell but without result. siderable of their answer was that the action “be abated until farm prayer change may conditions that a improve premises so sale said be effected undue loss to the and the mortgagee.” without owners long The action been time. There has been all the pending delay anybody properly for which could ask. in separate but failed sell tracts. attempted referee considered that a better received, price
Offers were but by selling could be the a whole. It was secured so sold by $3,000 the sum of the best bids for a sum which exceeded over separate tracts. appears principal grievance appellants to be What in kind the as instead of division was sold. We argument complaint proceeded sume soundness their in kind feasible. But not partition theory otherwise; also, answer, determined their has the court rather A. insisted sale unequivocally Burkes *3 that continued to be Henry’s death, after Furthermore, division. appellants. of the attitude rights “Henry in the homestead insisted their
They have As “Home Farm.” late and 80 acres of the residence” Burke plaintiff’s and upon the referee 1939, they when served September, they only that claim, notice of their insisted attorney formal “that it will defi- be so conducted of the whole the sale was homestead was There at what said sold.” appear price nitely the be the demand that all other sold before further notice excluded idea By implication, any that claimed homestead. kind that division in signed it, Alma who considered that anyone. Later, objec- in formal contemplated by possible of sale, the there was to confirmation similar by appellants tions and objections similar, significant silence concern- of other detail implication kind. the that even Inescapable in division ing no thought had that appellants, now objectors, the then possible. objecting in
Again, final judgment, this time apparently initiative and her own without advice of Burke counsel, Alma many grounds enumerated of complaint but again was silent con- cerning partition kind. Her main disappointment seems to have arisen from the fact, as she averred, that “the in- price is adequate.” Her averment that her rights homestead “were disre- garded” is untenable. There was effort to sell the so-called Burke separately, residence and the court has reserved jurisdiction later to pass upon the homestead claims of appellants and enforce them in respect proceeds of the sale.
All through long this pending case, first Henry Burke and later his widow and daughter, these appellants, formally have insisted emphatically sale rather than partition in kind. It too late to simply claim and for now, the first time, judgment was erroneous it ordered a sale rather partition in kind. On appeal, litigants may not so shift, say nothing of reversing, position. their 1 Dunnell, Dig. (2 Minn. ed. & Supps.) 401-409. §§
That
is not all. The evidence is not
in the record here. And
no suggestion,
there is
on behalf of
appellants,
any feasible
plan
partition in kind. The relatively large encumbrance is an
obstacle,
by itself
though
not insurmountable.
peculiar
char
acter and relation to each other of the improvements on the “Home
plus
Farm,”
probable inability
parties
equal
make needed
(as owelty)
ization
in cash,
arguendo,
offered,
are
explanation
Keyser
of the result.
143 Minn.
Hage,
W. 305.
Cf.
question the
Respondents
propriety
reviewing,
this
from final
order
appeal
judgment,
directing
sale. The
thought
order,
is that
which is referred to as an interlocutory
appealable
was itself
no
judgment,
that,
appeal having been
*4
True,
Keyser
it
final.
v.
taken,
Hage,
became
made
171,
in Dobberstein
44
N.
Murphy,
526,
held
v.
Minn.
47 W.
from
judgment
interlocutory
judgment
the final
appeal
upon
to
directing partition
(or sale)
open
is
Whether
is
review.
be;
it should
in the
proper procedure
whether
interest
an
complaining
such
order should be
party
permitted
rest
his oars and then to attack the
determination
interlocutory
judgment,
open
question.
from the final
Smith
appeal
v.
may,
Minn.
Judgment
Upon Application Reargument. 28, 1941, following opinion March was filed: On Justice. Stone, petition rehearing invites attention to the
Appellants’ need of inadvertent misstatements of fact. When the for correction title to the in question was commenced the property action Henry her died brother-in-law, shortly who plaintiff son, tried. the action was Burke’s widow Sib- before an appellants. are the was sold for amount ley, |200 by the sum bids on the separate exceeded which tracts. argument appellants’ reconsidered based Mason
We have
It is there
where
Supp.
provided
9540.
real
Minn. St.
§
action for
“if the
partition,
premises
is sold
an
con
they
lots,
separately.”
farms or
shall be sold
of distinct
But
sist
mandatory.
are
They
directory only.
not
are
provisions
So
such
not render
thereof does
a sale void.
It
contravention
voidable
showing
prejudice
fraud or
good
for other
cause.
53 N.
Kraker,
444,
51 Minn.
W. 706;
v.
Willard v.
Clark
Finne
8 L.
985,
Minn.
W.
R. A. 50;
Lamberton
gan,
Appellants’ alleged homestead rights have been far protected so justice as and the unkind permit. facts The court has retained jurisdiction to pass upon the homestead claims enforce them against proceeds Appellants the sale. submitted have no plan of partition feasible sale. lieu On the noth- merits, ing has appeared enable us to formulate a which could plan we substitute considered action below. court The petition is denied. BYHARDT AND
JACOB ANOTHER BALLORD v. JOHN A.
AND OTHERS. TRIMBLE HARRY L. AND ANOTHER, RELATORS.1
February 14, 1941. 32,583. No. W. 504. 1 Reported in