54 So. 155 | Miss. | 1910
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
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
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
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.