4 Barb. 228 | N.Y. Sup. Ct. | 1848
Partition between tenants in common of real property is a matter of right, by the common law as well as by statute. (Smith v. Smith, 10 Paige, 470.) Courts of equity have also a general concurrent jurisdiction with courts of law in all cases of partition, at common law, as well as by statute. (Story’s Eq. Juris. § 658. 2 R. S. 329, § 79.) And in cases of partition, a court of equity does not act merely in a ministerial character, and in obedience to the call of the parties, who have a right to the partition, but, acting upon its general jurisdiction, as a court of equity, it administers its relief ex cequo et bono according to its own notions of equity between the parties. Thus, it will assign to the parties respectively such parts of the estate as will best accommodate them and be of most value to them with reference to their respective situations in relation to the property before the partition; and
Nor is there any thing in the statute which restricts the power of the court in this respect. On the contrary, it is expressly provided that partition may be made of some of the lands held in common by the parties, while others are sold. The 37th section of the act in relation to the partition of lands (2 R. S. 323,) provides that in case the commissioners shall report to the court, that the lands of which partition has been directed, are so situated, or that any distinct lot, tract, or portion thereof is so situated, that a partition thereof cannot be made, without great prejudice to the owners of the same, the court may order the commissioners to sell, not the whole of the premises of which partition is sought, but the lands so situated that partition thereof cannot be made without great prejudice to the owners.
A decree must be entered for the appointment of commissioners, with directions to them to make partition of the premises between the plaintiff and the defendants, so as to set off to the plaintiff his fifty-four parts thereof, and to the defendants togeth