delivered the opinion of the Court:
Conceding that it is competent, as a majority of the court do, on the authority of Howey v. Goings,
Undoubtedly, the principle is well recognized that under some circumstances, as, where property is in -the hands of a receiver, a court of equity will direct the receiver to make repairs for the preservation of the property, and in extreme instances, where the interests of all parties unquestionably require it, it may be that it will direct him to make improvements for the more available and profitable employment and use of the property; but this is justifiable alone by the necessity of the situation. The principle is extremely dangerous, as tending to subvert the rights of private property, and it ought not to be tolerated beyond the limits of absolute necessity. It does not comport with the rights of ownership, or the fundamental principles of personal liberty, that the owner shall be compelled to pay for improving property which his judgment or inclination does not urge him to improve, although all of his neighbors shall unite in opinion that the improvement will be advantageous to him. If the power exists, its limits must, to a large extent, rest in the discretion of the chancellor. The principle that authorizes these improvements will sanction other improvements of a different character, and larger in amount, and thus an owner might be improved into bankruptcy and оut of his property. The co-owner may, perhaps rightfully, insist that the other shall contribute for the preservation of joint property, but he certainly, upon no correct principle, can insist that he shall enter upon new investments, to be paid for from the joint property or out of other funds belonging to him, against his judgment and inclination.
• None of the cases referred to by counsel for appellee go to the extent of this decree in this respect. In Smith v. Smith,
These are the only cases cited in support of the action of the circuit court, and we are aware of none going any further in that direction.
We are of opinion that the decree below can not be sustained. It will therefore be reversed, and the cause remanded for further proceedings consistent with the views herein expressed.
-r. , Decree reversed.
Separate opinion by Mr. Chief Justice Scott :
I concur in the decision rendered in this case, and also in some of the views expressed by Mr. Justice Scholfield ; but as there are other considerations that I think better sustain the decision, I can not forbear stating some of them. The question of most importance is as to the jurisdiction of the court to render the decree it did. In its decision it seems quite clear the court traveled-out of its jurisdiction as limited by the statutes of this State, whatever, may have been the power of a court of chancery in England in matters of partition. The forms adopted in proceedings in partition of estates in chancery, in England, have never been adopted or followed in this State. Indeed, it would seem to be impracticable to do so. In most of the American States the mode of making partition has been regulated, in a large measure, by statutes. As will bе seen further on, it has always been done under enabling statutes in this State.. .
The absurdity of claiming to make partition of estates in this State as was once done in England, in courts of chancery, will be apparent by ascertaining, as near as may b'e:, what the practice was. Mr. Daniell, in his work on Chancery Practice, says, in case ,of partition of an estate by courts of chancery, in England, if the titles of the parties were in any degree. complicated, the difficulties which had ocсurred in the proceedings at law led to applications to courts of equity for partitions, which were effected by first ascertaining the rights of the several persons interested, and then issuing a commission to make the partition required, and upon the return of the commission, and the confirmation of that return by the court, partition was finally completed by mutual conveyances of the allotment to the several parties. Where the title of the parties was clear on the record, it seems the court would, at the original hearing, order a commission of partition to issue, in the first instance, without any previous reference to the master. The author says the commissioners acted as a court. The parties or their solicitors were permitted to attend, and were permitted to produce their deeds and other evidence, as well written as oral, and to point out anything that might tend to give the commissioners full information on the subject, and to take every step necessary to discover the truth, and to enable the commissioners to make a proper return. The duties of the commissioners were definitely pointed out. They were directed to “go to, enter upon and walk over the estate” to be partitioned. They were required to look into the bill and the answer, an(l, the pleadings were made their guide as to the estate to be divided, and the manner in which it was to be done. Having in that way ascertained what estate was to be divided, they wеre next to make a “fair partition, division and allotment thereof into as many shares and proportions as the decree directs should be done. ” It seems the parties themselves were permitted to name the commissioners, and they were therefore regarded as “judges of their own choice, ” and it was for that reason it was said the principles applicable to arbitration were applicable to them. But for any gross error of judgment, however, the court would set аside their adjudication. It was not necessary, in making partition in chancery, every part of the estate should be divided. It was sufficient if each party had allotted to him his proper share of the whole. All the forms to be observed, and the manner of making the allotments after a division was agreed upon, are fully stated by Mr. Daniell in his work on Chancery Practice, in the section on “ Partition. ” 2 Daniell’s Ch. Prac. (1st Am. ed.) p. 1326. In some cases it was found it was impracticable to divide the property in equаl shares, quantity and quality considered, and the practice was adopted at an early day of making a money compensation to the party receiving the least valuable parcel, by way of securing equality of partition. The practice, perhaps," at first pertained to the division of estates between co-partners, and afterwards it seems to have been extended, by statute, to the partition of estates between joint tenants and tenants in common. It is most probable, the practice had its origin in the necessity arising from the want of power in the courts to order a sale of property. A statement of this doctrine is found in the early case of Clarendon v. Hornby, .1 P. Wms. 447, where it is said: “If there were three houses of different values to be divided among three, it would not be right to divide every house, for .that would be to spoil every house; but some compensation is to be made, either by a sum of money, or rent, for owelty of partition, to those that have hоuses of less value.” This case, stated by the chancellor for the application of the rule, has been re-stated by most of the text writers on this subject, and is a case that illustrates the doctrine as well as any to'be found in the books.
It is needless to pursue this investigation further, or to inquire whether a sum of money or rent was awarded as for .owelty.of partition, under the practice that.once prevailed in chancery, in England, was made with or without the consent of the parties, or only in рarticular cases coming within á definite rule, as enough has been said to make it certain no such practice has ever prevailed in this State. In some of the American States owelty of partition is made by decreeing the payment of money to the party to whom the portion of the estate of least value is allotted, but in most, if not all, of the cases to which the attention of this court has been called, it was done either by consent of the parties capable of giving consent, or under the provisions of an enabling statute or code on the subject. That is so in the following cases: Smith v. Smith,
If it should be conceded, which it is not, the courts of chanсery in this State might properly exercise the same powers in such matters as the English courts of chancery once had, it • would be fatal to the present decree the court did not conform, in this case, to the practice in such courts, in any essential particular. No such formalities as the Eáglish courts observed were conformed to in this case, as is quite apparent from what has gone before. But the decision might be placed on the broader ground, courts of chancery in this State have no power to award a money compensation to secure owelty of partition. The whole matter of making partition in this State, as it is in most of the States, is regulated by statute, and the courts in such proceedings, whether at law or in chancery, .must conform to the mode provided by statute, and may not proceed otherwise. All the early statutes in this State, on this subject, had relation to, and were intended, no doubt, to regulate proceedings on petition for pаrtition in the law courts, and it was evidently intended the method provided should take the place of the common law remedy by writ of partition. But it was not intended to confer on the law courts exclusive jurisdiction in that respect. As appears from numerous cases in this court, equity assumed to exercise jurisdiction in matters of partition concurrently with the courts of law. In the early case of Howey v. Goings,
The earliest act of the General Assembly of-this State, in relation to partition, was passed at its session in 1S19. That act provided that where the property was so circumstanced a division could not be made without great prejudice to the owners, and the commissioners appointed to make partition so reported, it was made the duty of the court to order its sale, and the proceeds were to be divided according to the interests of the respective parties. The act of 1827, for the speedy assignment of dower and partition of real estate, repealed the act of 1819, and provided that partition might be made by the circuit court, on petition. It was to be done by three commissioners appointed by the court. Section 2 of the act of February 20, 1819, was substantially reenacted as section 16 of the act of 1827, and provided where any lands, houses or lots are so circumstаnced that a division thereof can not be made without manifest prejudice to the proprietors of the same, and the commissioners appointed by the court shall so report, the court shall thereupon give an order to the commissioners, or other person or persons, to sell such real property. It was made the imperative duty of the court, in all cases where the commissioners reported a division could not be made without manifest prejudice to the proprietors, to order a sale of the property. The substance of section 16 of the act of 1827, has been retained in all the revisions of the statute on the same subject, down to the present time. That section was almost, if not quite, literally transcribed into the revision of 1845. The same mode of procedure subsequent to the report of the commissioners against the divisibility of the property, is still provided for in the statute now in force in relation to partition. The present, as well as all former statutes of this State, provides, when the whole or any part of the premises sought to be partitioned can not be divided without manifest prejudice to the owners, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of division. to be sold. It will be noticed the language of the statute is, not that the court may order the sale of the property in such case, but that it shall do it. It is also to be noted the statute in force July, 1874, and under which the proceedings in this case were had, provided partition may be compelled by bill in chancery, as heretofore, or by petition in the circuit court. Of course, if the proceedings were on petition for partition in a court of law, no one would insist partition would be made otherwise than as the statute directs. But is not this statute as obligatory on courts of equity as upon the courts of law, in the mere matter of making partition? How was partition оf estates heretofore compelled by bill in chancery ? The answer is obvious. It was done by following the mode provided by statute and not otherwise,—that is,' no matter whether the proceeding was in a court of chancery by bill, or in a court of law on petition,—the practice was from the first to appoint three commissioners to make partition of the estate among the owners, and in case the commissioners reported it' was impracticable to make such pаrtition without manifest prejudice to the owners, the invariable practice was to follow the statute, and order a sale of -the property and divide the proceeds. The rule of procedure in this regard has been the same since the State government first went into effect, and it has not heretofore been departed from by any court, either of law or equity, in this State. It is absurd to be supposed that when the General Assembly declared partition might be compelled .by bill in chancery, as “heretofore, ” it was meant it might be done as was once the practice in English courts of chancery. No such practice heretofore existed in this State at any time. On the contrary, as has been seen, the practice has always been, whether the proceedings were in chancery or at law, to appoint commissioners, as the statute declares shall be done, to make partition, and on their report that partition could not be made without mаnifest prejudice to the owners, then to order a sale of the premises. The statute in that respect has heretofore been regarded as obligatory upon all courts having jurisdiction to order partition, and no reason is perceived why it does not control as to the method of making partition, to the exclusion of all other modes. And certainly, when the legislature provided partition might be compelled by “bill in chancery, as heretofore,” it was meant it should be done, аs had been the invariable practice, in accordance with the statute. Any other construction would be most unreasonable.
Although this question has never before been presented to this court so distinctly, perhaps, as in this case, still the principle that must control-has been determined by the decision of this court in Gooch v. Green,