11 Nev. 389 | Nev. | 1876
By the Court,
The parties to this action are co-tenants of a tract of land, and the suit is for a partition or sale of the common property. There Avas an interlocutory decree ordering a partition and appointing referees, and a final decree confirming their report of the partition made. The plaintiff appeals from both decrees.
The interlocutory decree, after reciting the finding of a jury (impaneled to try that issue), that partition can be made without prejudice to the owners, proceeds as follows: ‘ ‘ Where!ore, in accordance Avith said verdict (the court haA'ing personally viewed the land and premises in controversy, and being satisfied therefrom and from the evidence in the cause given at the trial thereof, that said verdict is
The appellant objects to this decree on the grounds: First, that the court exceeded its jurisdiction in making the partition itself instead of leaving it to be done by the referees; and, second, that even if the court had possessed the authority to make the partition, it proceeded in this instance upon an erroneous principle. Both points are well taken: . .
First. The court can order a partition to be made, but it • cannot itself make the partition except in the indirect mode of confirming the report of the referees appointed for the
Second. We are not aware of any precedent for requiring a severance and removal of improvements which are a part of the realty from one parcel of the land to another in order' to equalize their values, and we think such a course would be generally, if not always, injurious to the interests of the co-tenants. If, in carrying out an order of partition in a case like this, the land cannot be divided into parcels of convenient shape and situation without throwing all, or the more valuable portion of the improvements into one tract, then, unless the value of the land in the other tract is greater than in the one on which the improvements are situated, it should be increased in area until it is equal, quantity and quality considered, to the remaining tract,'with the improvements included. The statute (C. L. secs. 1338-9-40-41), and the authorities cited in.the briefs of counsel, sustain these views, and upon the grounds stated, and for the additional reason that the decrees order a partition of certain personal property not mentioned in the pleadings, the interlocutory decree must be reversed, and as the final decree merely carries the interlocutory decree into effect, that must be reversed also.
It is ordered that the final decree be reversed, and the interlocutory decree also, in so far as it attempts to make a partition; and the cause is remanded for further proceedings in accordance with the views herein expressed.