Shorter v. Lesser, 54 So. 155

Shorter v. Lesser

54 So. 155 | Miss. | 1910

McLain, C.

Leo Lesser filed a bill in the chancery court of Tunica county against R Shorter, alleging that he and Shorter were the owners of a certain eighty-acre tract of land, and that he (Lesser) owned a three-fourths interest in same and Shorter the other one-fourth. He charges in his bill that the land is not susceptible to partition in kind, and that a sale of the land will better promote the interests of parties than a partition in kind. Shorter, in answering the bill, avers that the land is susceptible of an equal partition in kind, and he made his answer a cross bill, praying that the land be divided in kind, and *711expressing a willingness, if necessary, to give or take, owelty. By consent, a decree was rendered, appointing commissioners for the purpose of partition in kind, if sucli partition was practicable, and they were directed to cause a survey to be made of the land, and platted, said plat to show the cleared land, wild land, heavy timber, light timber, and the character of the land with regard to its being low or high, buildings, improvements, etc., and to report to said court whether or not said land was susceptible of division in kind, and if, in their opinion, it is so susceptible of division in kind, they were ordered to divide said land into two tracts, allotting to Lesser three-fourths and to Shorter one-fourth, having regard to both, quantity, quality, and value, and to give and take owelty, if need be. They were further ordered that, if they find that said land is not susceptible to division in kind, then to so report to the court, and with their said report to show the value of the entire property. In obedience to this decree, they reported to the November term, 1909, filing with their report a plat of survey and the value of the land. They also reported that in their opinion it was not susceptible of division in kind, even by taking and giving owelty. Shorter filed exceptions to this report, insisting that the land was susceptible of partition in kind. The court, after hearing evidence upon this question, decreed a sale of the land for partition, and required the commissioners to sell for cash at a price not less than two thousand five hundred dollars. From this decree, Shorter appeals to this court.

In considering this case, we will state at the outset that the law looks with favor upon a partition in kind, and with disfavor upon a sale of lands for partition, unless it appears that an equal division cannot be made in kind, or that a sale of the lands will better promote the interest of all parties than a partition in kind. Unless these conditions are fully met, the court has no right *712to divest a landowner (co-tenant) of Ms title, over Ms protest, and order the sale of same.. The party seeking to have the sale of the land must bring his case clearly within this statutory provision. He must show conclusively that an equal division cannot be made, or that a sale would be more beneficial, or- less injurious, than an actual division. Our court, in passing upon this question, said: “The common law gave to joint owners of land a right to have a partition in Idnd, and the right of selling the land and of dividing the proceeds, given by the statute, is an innovation upon the common law; and as it takes away from the owner the right to keep his freehold in kind, it must be strictly pursued, and it must appear from the record that an equal division cannot be made, or that a sale of the land will better promote the interest of all parties than a partition in kind.” Cox v. Kyle, 75 Miss. 669, 23 South. 518. See, also, Smith v. Stansel, 93 Miss. 71, 46 South. 538; Tindall v. Tindall, 3 South. 581; Pomeroy’s Equity Jurisprudence (3d Ed.), § 1390.

Applying the facts of this case to the above principles of the law, did the court commit error in ordering a sale of the lands and directing a division of the proceeds between appellant and complainant, according to their respective interests ? It is true the commissioners stated in their report to the court that in their opinion the land was not susceptible of division in Mnd, even by taking and giving owelty. But in our opinion they failed to give any substantial reason why.it could not be done, except to say that they did not think it is to the best interest of the parties to have the land partitioned in kind. Several winesses, besides Shorter, the defendant, testified that it could be. partitioned in Mnd. But, above all this, here is a record before us showing a tract of land containing eighty acres, consisting of two forty-acre tracts, lymg side by side, used exclusively for agricultural purposes, thirty-eight acres of which is now in cul*713tivation, and the balance uncleared, with no lakes, marshes, or worthless land thereon. It is true the most valuable land is at one end of the tract, and the least valuable at the other. But it does occur to us that under our statute, which provides that, if an equal partition in kind cannot be made, an amount of money may be assessed, to be paid by one of the co-tenants, so as to equalize their respective shares, that there is no good and sufficient reason in this record why the land cannot be partitioned, and at the' same time do exact justice to both parties in interest. It is difficult to conceive a case wherein it would be necessary to sell eighty acres of land, lying as this land does, to equitably divide it between two parties, owning a three-fourths and one-fourth interest, respectively. However, such a case may occur. This record fails to show such a case. Indeed, the facts fall far short of showing that the best interest of both parties will best be subserved by a sale, instead of a division in kind.

We think that it is manifest that the learned chancellor below committed an error in ordering a sale of this land.

Reversed and remanded.

Per Curiam;. The above opinion is adopted as the opinion of the court, and, for the.reasons therein indicated by the commissioner, the decree is reversed and the cause remanded, with leave to either party to reopen the case and take any further testimony desired.