Metcalf & Simpson v. Hoopingardner

45 Iowa 510 | Iowa | 1877

Eothrook, J.

i partitionmon °pvoperty-I. The petition and answer contain many allegations which in our view of the case are redundant and irrelevant. They consist of allegations as to the ability and inability of the parties to agree, as to the necessity of repairs, the time when the mill was erected, when plaintiffs bought their interest, 'and as to ■whether the parties can or cannot harmoniously operate the mill together. Much of the argument of counsel for appellant is -in support of the proposition that there is no constitutional power to require a partition to be made by a sale of the common property and a division of the proceeds.

Section 3290 of the Code provides that the court shall appoint referees to make partition into the requisite number of shares, or if it is apparent, or the parties so agree, that the property cannot be equitably divided into the requisite number of shares, a sale may be ordered.

It appears from the petition and answer in this case that the property cannot be equitably divided, and. so far as the practicability of a division is involved no question is made.

The power of the legislature to provide that the shares of all the parties shall be sold, where a division of the land cannot be made, has been too long acquiesced in to be now called in question. We think the owner of an undivided interest in real estate has the right at any time to have partition made; and, if the premises cannot be divided by metes and bounds, he has a right to compel a sale, that he may have and hold his interest in the proceeds in severalty.

Such a proceeding is not depriving.a party of his property without due process of law. When parties, by contract, assume the relation of tenants in common in real estate, the law fixes their respective rights, one of which is that the partnership may be dissolved, so to speak, and that if necessary the common property may be sold and the proceeds divided.

2. —r: tenmon: parties, II. The Code, Sec. 3277, provides that the action for partition shall be by equitable proceedings. The answer in this • case sets up that rents are due to the defendant, and that the plaintiffs, while in possession under the lease, allowed the mill to become out of repair to the extent of from $200 to $100, for which they are liable under their lease. The court below should have heard the parties upon these allegations. Equity demands that the rights of the parties be ascertained; and the defendant was entitled to have a hearing upon the allegations of his answer.

The abstract of title shows that there is a lien' upon the undivided one-half of plaintiffs’ share for the purchase money. It is true this lien purports to be on the whole property, but as the mortgage was not executed by the defendant it cannot affect his interest. The abstract further shows that there is a judgment lien against the interest of the defendant. It is required, by section 3287 of the Code, that if the lien be upon one or more undivided interests the bolder thereof shall be made a party. This has not been done. The lienholders should have been made parties, and an account of the amount due on their liens should have been taken, before the order of sale was made. There is a manifest propriety in that proceeding. It is evident that if the amount of the liens be ascertained before sale, and provision be made for their payment by the decree, a purchaser will know just the extent of the liens, their rate of interest, and interest of the respective parties, and the court will be prepared upon the coming in of the report of sale to make such order as will protect all parties.

The cause will be reversed and remanded, with leave to the plaintiffs to make the lienholders parties (if such liens still exist), in order that an account of the liens may be taken. .And the parties should be allowed to present their respective claims for improvements, and for violation of the provisions of the lease, and their rights should be adjusted before an order of sale is made.

Eeversed.