186 Mass. 1 | Mass. | 1904
This is a petition to the Superior Court, filed July 29, 1901, for the partition of certain parcels of land in Boston, by eight of the ten heirs at law of Jane Nugent, deceased. The respondents are the other two heirs at law and certain creditors. The principal defence appears to be that on June 10, 1901, a petition was filed in the Probate Court for partition, and this petition, after a hearing, was dismissed, at the request of the petitioners, without prejudice, and a decree was entered accordingly. No appeal was taken from this decree. The Probate Court had jurisdiction of this petition, Pub. Sts. c. 178, §§ 45, 48, whether the estate had been settled or was in course of settlement. But this jurisdiction was concurrent with that of the Superior Court, by §45.
The contention of the respondents is that, as it is provided by the Pub. Sts. c. 178, § 64: “When proceedings for obtaining partition are lawfully commenced in either of the courts men
The remaining objection of the respondents is that the Superior Court had no power to appoint a receiver. The facts in regard to this are that on October 8, 1901, the cause was continued nisi, and on April 13, 1903, this order was vacated, and the case heard. The judge found that the petitioners were entitled to have partition made; that it was practically impossible to set off to each owner his share by metes and bounds, and ordered a partition by sale at public auction. An interlocutory order to this effect was made on October 17, 1903. The judge had previously, on August 28, 1901, appointed a receiver to collect the rents and profits of the estate from the tenants in possession.
The appointment of the receiver and the delay in the case were probably caused by the supposition that partition could not be had until the estate was settled. But three months before the order appointing the receiver was made, this court had decided that a partition might be made before the estate was settled. O’Brien v. Mahoney, 179 Mass. 200. There was therefore no occasion for the appointment of a receiver; and it may well be doubted whether the judge had any power to appoint a receiver, even with the assent of all the parties.
In Blood v. Blood, 110 Mass. 545, it was said by Mr. Justice Gray: “It is of the very essence of a tenancy in common, that the tenants have each and equally the right to occupy the property and take the profits.” In this case the court refused to entertain a bill in equity, between two tenants in common, praying for an injunction and for the appointment of a receiver. See also Husband v. Aldrich, 135 Mass. 317.
If, however, the judge below erred in this respect, we are of opinion that this does not in any way affect the right of the petitioners to have a partition made.
Decree for partition affirmed.
