No. 4622 | Ga. | Jan 17, 1925
The only question involved at the trial was whether there should be a partition of described land. It was admitted by the defendant that the land could not be divided by metes and bounds. The only issue raised by the defendant was as to the quantity of his interest. He denied that he owned the interest as alleged by the petitioners, and insisted that he owned a larger interest. The basis of his claim of a larger interest was set out in his equitable cross-petition to be that a certain deed executed by himself and seven brothers to his mother and six sisters should be set aside and canceled on the ground of fraud, and if so canceled it would make a larger interest than that alleged by the petitioners to be his part. If the deed is not canceled, it- follows necessarily that his interest is that alleged by the petition. The court passed an order to the effect that the land could not be divided by metes and bounds, and ordering it sold in two ways, first in four parcels and second as a whole, and ordering the commissioners to accept the highest and best bid. The objector excepted to this judgment. No judgment has yet been rendered dealing with a distribution of the proceeds, nor with the quantum of interest of the parties. Held:
1. There is no merit in the contention that the judgment is erroneous because the court ordered the property. sold in separate parcels. The terms of the order also required the property to be sold as a whole, and the bid to be accepted which is most beneficial to the parties.
2. Under Rodgers v. Price, 105 Ga. 67 (31 S.E. 126" court="Ga." date_filed="1898-07-22" href="https://app.midpage.ai/document/rodgers-v-price-5568456?utm_source=webapp" opinion_id="5568456">31 S. E. 126), and Brown v. Mooney, 108 Ga. 331, 336 (33 S.E. 942" court="Ga." date_filed="1899-07-22" href="https://app.midpage.ai/document/brown-v-mooney-5569229?utm_source=webapp" opinion_id="5569229">33 S. E. 942), and authorities cited, the court was authorized to render the judgment at chambers without a jury.
3. The remaining questions raised have reference to the quantity of interest of the objector. The court did not deal with that question, which will be decided after the property is sold and the court passes an order distributing the fund.
Judgment affirmed.