14 Ga. 521 | Ga. | 1854
By the Court.
delivering the opinion.
This is a bill for partition. The complainant, Seaborn Jones, alleges that he and Daniel McDougald, in his life-time, owned and possessed twenty-five lots in the City of Columbus, which are identified by their numbers, in the plan of said town. It charges that complainant owns three-fourths of all these lots, and the estate of McDougald the remaining fourth, and prays that a partition may be made, not by sub-dividing these various lots, but by allotting them in entire lots. It further prays for general relief.
A general demurrer was filed to the bill, which being overruled, the defendant excepted.
We have heretofore held, and do still maintain, that in this State, Equity does not possess, ordinarily, concurrent jurisdiction over partitions; and that if the remedy at law be full and complete, to that forum the party must go.
We must examine the bill, then, to see whether the statements which it contains will justify Chancery jurisdiction. It charges that some of the lots are improved, and that to cut them into parcels, would be impossible; at any rate, that it would greatly depreciate their value. The demurrer admits this to be true.
Again, it is suggested that one Adolphus S. Rutherford has been appointed receiver, under a deed said to have been executed by McDougald in his life-time, for the benefit of his creditors. The bill does not allege expressly, as it should have done, that the lots which are sought to be partitioned, are included in this trust deed. Such was probably the intention of the draftsman.
And here, again, the bill is not so full as it might have been —ought to have been. It does not aver, affirmatively, that a state of facts exist which will render it indispensable for a Court of Equity to interpose. Perhaps the draftsman could not make such positive averments.
But not only may the difficulty, as to pecuniary compensation, come up in the future progress of this case, and which a Court of Equity, alone, could adjust, but others are suggested to the mind of this Court.
It would seem that the co-tenant should elect to proceed under the one Act or the other. One contemplates an actual division, and in kind only; the other a sale. How can you combine the two modes at Law ? This doubt would incline us to sustain the Chancery jurisdiction, apart from the element of pecuniary compensation.
But I forbear to multiply reasons, to show that numerous exigencies may arise, in the progress of this proceeding, for the partition of these lots, which could only be arranged in Equity.
Assuming, then, that the facts set forth in this bill, meagre as they are, compared with what they might have been, and out of which all these suggestions, and others which might be made, legitimately arise, make it just as obligatory upon this Court to sustain this bill, as though they had been stated and charged by the complainant, we feel it to be our duty to affirm
Judgment affirmed.