McWhorter v. Gibson, 2 Wend. 443

McWhorter v. Gibson

2 Wend. 443 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland. J.

The first question in this case is, whether it is competent for commissioners in partition to assign to the plaintiff in partition his individual share, and at the request and with the consent of the defendants, to set off their share of the premises together, without making partition among them. Second. If such partition is valid, whether the judgment can be against all the defendants jointly for the costs, or whether it should be against each individual for his respective proportion.

*445It is contended on the part of the plaintiffs in error, that even the consent of the parties cannot confer upon the courts authority or jurisdiction, to make a partition of any other character or description than that which is directed by the statute, and that the statute directs that partition shall be made between all the parlies. The general phraseology and provisions of the act undoubtedly contemplate an assignment to each owner of his respective portion when capable of being ascertained. But this proceeds upon the assumption that such will be the wish of the parties. The plaintiff in partition is entitled to have his share set off, if the premises are capable of being divided, for that is bis only object in instituting the proceedings; but if the situation, of the defendants is such as to render it for their interest to retain their proportion together and undivided, there can be no possible objection, in principle, in permitting it to be done, nor is it incompatible with the spirit and intention of the act.

Why should several defendants, who own a farm or tract of land in equal proportions, be subjected to the expense of surveying or subdividing it into a dozen parts, when they can agree upon an amicable division among themselves, or when no division whatever is desired by them 1 Those who want their respective portions assigned to them, are entitled to have them; but if two or more prefer keeping their shares together, it could not have been the intention of the legislature to prevent it. It perhaps would have been more regular for the commissioners in this case to have reported to the court that the defendants did not wish their portions divided, and to have obtained an order or authority from, the court to set off to the plaintiff his share, and to leave the residue of the premises entire, but I do not think it very material.

I am inclined to think that the consent .of the defendants to retain their portion undivided, must be construed into an assent to a joint judgment against all for the costs.

Judgment affirmed,