The petitioner seeks for an order of sale of certain real estate in which she is interested in commоn with the respondents.
The facts appear in the finding of the Superior Court, to which reference must be had.
Thе first claim made by the respondents is that the Superior Court has no jurisdiction to order the sale of the estate, the same being owned by the parties as devisees under the will of Nehemiah Brown deceased, and being, as thе respondents say, within the exclusive jurisdiction of the probate court.
The power conferred upon thе Superior Court to order the sale of property in which several persons are interested is very broad. By the 41st section of the Act regulating proceedings in Equity it extends to real estate held in joint-tenancy, in common, coparcenary, or otherwise. And by chapter 43d of the Acts of 1866 it extends to a>ny real estate in which, оr any portion of which, two or more persons have different and distinct interests. The court of probate has no power to order the sale of real estate merely because of the difficulty of dividing it. The jurisdiction of that court is limited
But although еxtensive powers are vested by the statutes above referred to in the Superior Court, the power always has been and always ought to be very cautiously exercised. The compulsory sale of one’s proрerty without his consent is an extreme exercise of power warranted only in clear cases.
By the express terms of the statute it is warranted only “ whore a sale will better promote the interest of the parties in interest,” that is, will better promote it than a partition.
In this case the Superior Court finds “ that the estate sought to bo sold can be as wrell distributed and aparted into three divisions, (namely, between the petitioner, the heirs of Julia Kirk, deceased, and Eliza Snyder and her children,) as it can bo sold and the avails of 'such sale divided in the same prоportion to the same pai’ties, providing said land can be sold in accordance with the statute; but said еstate cannot be as well divided among all the parties in interest as the same can bo sold and the avails thereof distributed to each party in interest in proportion to his or her respective share.”
Upon this finding wе think the order of sale ought not to be made. The petitioner can have her third part set out to her without difficulty. So far as setting out her share to her the land is capable of partition and full justice can by the partition bo done to her. Why then should she be permitted to demand a sale, if, so far as the petitioner is concernеd, a sale will not better promote her interest than a partition ?
Will it better promote the interest of the respondents ? The counsel fоr the petitioner say it is so found, and claim that the petitioner may on that ground demand a sale, but the respоndents object, and we think the petitioner carfnot force upon them a boon which they do not seek. The respondents prefer that the property should be divided into three parts, that the petitioner should take1 hers in severalty, wdiereby she gets her fair share, and that the remaining two
Besides her interest as devisee under her father’s will, the petitioner has a mortgage upon the share of the children of her sister, Mrs. Kirk, and the claim is made that this fact should havе some weight in favor of ordering the sale sought for. But we think her appropriate remedy as mortgagee is by foreclosure. The statutes above referred to authorizing sales cannot be construed as extending the rеmedy of mortgagees and as authorizing the sale of mortgaged premises upon application of thе mortgagee.
It appears also that there has been a sale of portions of the real estаte of Mr. Brown to pay taxes, and the petitioner claims title to the portions thus sold. Whether the sales thus madе were regular and legal does not appear, nor is it found whether the petitioner’s title is or is not good undеr them. Upon the statement of facts in the finding there is reason to doubt the validity of the alleged tax title. If Mrs. Ford has gоod title under the tax collector, then, quoad the land thus owned in severalty by her, they are out of the case, and are not subjects of partition or of an order of sale by the Superior Court. If however it be true, as sеems probable from the finding, that there is a contest in regard to these tax titles, there ought to be no order оf sale until that contest is- settled; and such contest cannot in general be settled upon the petition for sale, but ought to be settled as a preliminary matter in an independent suit.
For the several reasons thus given, wo advise the Superior Court to dismiss the petitioner’s bill.
We have no occasion to decide upon the validity of the dis
In this opinion the other judges concurred.