172 Ky. 303 | Ky. Ct. App. | 1916
Reversing.
■Ingraham Leslie, W. S. Litteral and David Sparks jointly and equally own two tracts of land, containing 178 acres and 10 acres, respectively, lying on Joe’s creek, in Pike county. The two tracts are contiguous, and may be treated as one tract for the purposes of this ease. The land formerly belonged to Leslie and Litteral, who sold an undivided one-third interest thereof to Sparks, for $333.33, in November, 1908.
Sparks owns and lives upon his home farm containing between seventy-five and one hundred acres, which lies next to the 188-acre tract.
On December 23, 1914, Sparks brought this action against Leslie and Litteral for the purpose of having the 188 acres divided between Leslie, Litteral and himself, according to their respective interests, as may be done under section 2348 of the Kentucky Statutes. Leslie and Litteral answered, denying that the tract could be divided without materially impairing its value, or the value of their, interest therein; and, by a counter-claim, they asked that the property be sold, as a whole, for the purpose of dividing the proceeds of sale between the joint owners, as is provided by subsection 2 of section 490 of the Civil Code of Practice.
The second paragraph of the answer alleges that the tract is mountainous and rough, containing less than one acre of level land; that there is very little agricultural, land in it; that there is only one house or building site on said tract; that it has underlying it two or three workable seams of valuable bituminous coal, about six feet thick; that it would be impossible to divide the tract so as to allot to the respective owners thereof their shares according to quality, quantity and value; that it' cannot be divided without materially impairing its value, or the value of the defendants ’ interests therein; and, that it would sell for a greater price, as a whole.
The answer further states that Litteral had made a *‘ give or take” proposition to Sparks for their respective shares in the land, and that Sparks had refused to ■entertain it. And, during the taking of proof, appellants ■offered Sparks $800.00 for his undivided interest, which he refused.
It has frequently been held by this court that where an issue has been once made by the pleadings, and a subsequent pleading reiterates the facts already in issue, it is not necessary for the opposing party to ag’ain traverse them. Robinson v. Williamson, 7 Bush 604; Macklin v. Trustees, 13 Ky. L. R. 93; Preston v. Beall, 14 Ky. L. R. 61, 19 S. W. 175; Schmidt v. Mitchell, 101 Ky. 591.
Upon- the principal issue of divisibility, appellants introduced six witnesses, who testified that the land could not be divided without materially impairing its value, and that it would bring a greater price if sold as a whole; while Sparks introduced five witnesses, who testified precisely to the contrary.
It further appears that if Sparks’ share of the land in question be laid off to him so as to adjoin his kome¡ 'place, it would increase the value of his home place in a sum perhaps greater than the actual value of the share so allotted. In other words, Sparks’ allotment would'
In Talbott v. Campbell, 23 Ky. L. R. 2199, 67 S. W. 53, it was said that unless it is made affirmatively to appear that the property is indivisible without materially impairing its value, it would be error to adjudge its sale as an entirety; that the owner of each share is entitled to hold his property subject only to the rights of his co-tenants; and that, if a tract is indivisible, it would be unjust to the other tenants to compel them to suffer sacrifices to gratify one joint owner’s whim or claim to personal use of the identical property.
That language was quoted with approval in Grill v. Lane, 26 Ky. L. R. 269, 80 S. W. 1166.
The effect of these decisions is, that a partition is the joint owner’s primary right, which will not be denied him unless it be made affirmatively to appear that the tract is indivisible without materially impairing its value. On the other hand, if such indivisibility is so made to appear, it would do equal violence to the rights of the joint owners if a sale as a whole should be denied them.
Appellee, while not controverting the propositions, of law above laid down, relies upon Conner v. Cox, 15 Ky. L. R. 140, 22 S. W. 605, which merely holds that although a tract of land jointly owned is indivisible, yet, if it further appears that the interest of one joint owner can be allotted to him without injury to the interest of the other joint tenants, the court will allot his interest to him so that the other joint tenants may .still hold their shares jointly. See also Kirk v. Crutcher’s Admr., 145 Ky. 54.
Sparks insists that this rule can be applied under the facts in the case before us, by allotting him his one-third of the tract in question so that it. may adjoin his home place, while Leslie and Litteral may continue to hold their two interests jointly. But, this assumes that Sparks’ share may be allotted without materially impairing' the- value of the remaining two-thirds of the tract, which is the very question in issue. Unquestionably, a tract of 188 acres can be divided into three parts,
And, it further appears that in order to carry out the judgment and allot Sparks’ interest so that it will adjoin his home place, it will necessarily include within his allotment the house site, above referred to, and leave no building site whatever for two-thirds of the farm.
The principal value of this land lies in its two undeveloped coal seams. They have not been surveyed, and no proof has been taken, and probably could not be taken, showing their extent or location. The commissioner has not yet made a partition, and it cannot be said how he will divide the tract.
However, considering the character of the land, the location of the only available house site, and the great uncertainty that must necessarily arise as to the value and location of the two unsurveyed coal, seams, it seems reasonably clear, under the proof, that no satisfactory partition of the land can be made. At best, it would largely be a guess as to values based upon unknown and uncertain factors. In a case of that character, the Code contemplates a sale as a whole, and not a partition.
Judgment reversed, with instructions to the circuit court to enter a judgment selling the tract as a whole and directing a division of the proceeds.