124 N.W. 427 | N.D. | 1910
On the 20th day of September, 1904, plaintiff and the defendants were co-tenants in possession as tenants in common of certain real property situated in McIntosh county, N. D. The interest of each of said parties in the real property in question was as follows: The plaintiff, one-eighth; the defendant Wishek, one-eighth; the defendant Lilly, one-fourth; the defendant Northwestern Construction & Improvement Company, one-half. On the above-mentioned date the plaintiff brought this action to obtain a judgment and decree petitioning the said property according to the respective shares and interests of the parties hereto, and setting apart and confirming to the plaintiff in severalty, one-eighth in valúe thereof, etc. On the 19th day of April, 1905, the defendant Northwestern Construction & Improvement Company sold and confirmed to the intervener, Nina Wishek, all its right, title, and interest in and to the property in question that remained unsold at that date. On the 28th day of July, 1905, the defendants Wishek and Lilly served their amended answer, in which they set forth the interests of the respective parties, as the same were alleged in plaintiff’s complaint, and prayed for the same relief; that is, that a judgment and decree
Substantially all -the -business of the village is confined to blocks 11, 12, 17, and 18; 11 and 12 being on the north side of Main street, and. 17 and 18 on the south side. The business streets are Main street, extending east and west, and Fifth street, running north and south, where the same extends between blocks 11 and 12. The case was tried by the court without a jury, it being stipulated that Hon. Frank P. Allen, judge of said court, should act as réferee in partitioning said -real property between said parties in proportion
We are met at the outset by a motion to strike out statement of the case, abstract, and brief, filed and served herein, and to affirm the judgment of the district court. As we have decided to pass on the merits of this case, it will not be necessary to decide said motion. The appellant contends that the issues of fact were erroneously decided by the district court, in each of the following particulars: (1) In not allotting to the plaintiff each and every one of the lots covered by his contract; (2) in not allotting to the plaintiff his proportional shares of the undivided blocks and out lots.
The evidence is undisputed that the plaintiff had previously sold the 24 lots awarded to him for $2,250. Fifteen of the lots were in
The rule of law contended for by appellant is undoubtedly correct. The same rule is laid down in section 7416, Rev. Codes 1905, which section, as far as material here, is as follows:
“In making the partition referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pursuant to the provisions of this chapter, designating the several portions by proper landmarks and may employ a surveyor with the necessary assistants to aid them.” We think the learned trial court followed this rule in partitioning the property. He awarded plaintiff’s grantees, 24 of the 26 lots sold by said plaintiff. It appears to us that the learned trial judge went as far as he could in his desire to protect the interests of plaintiff’s grantees.
■ After a careful consideration of the entire case we are fully persuaded that the decision of the lower court was in all respects correct, and the judgment is accordingly affirmed.