Ticknor v. Leavens' Ex'r

2 Ala. 149 | Ala. | 1841

ORMOND, J.

— The objection made to the decree in this case, is rested on the case of Walker et als. v. Hallett, 1 Ala. Rep, (N. S.) 391. In that case, there was a reference to the Master, to ascertain whether it would be most for the interest of the parties, to sell the estate entire, or in separate lots. The Master reported, that it was most for the interest of the parties to sell the premises in separate lots, if it could be conveniently divided. The fact being thus ascertained by the Master, that it was for the interest of the defendants to sell the premises in separate lots, we held, that the Master should have proceeded further, and ascertained whether it was susceptible of division; and that it was error, in a case where infants are concerned as defendants, to render a decree, giving the Master the option at the sale, to do, or omit to do, that which should have been pre: viously ascertained by the Master’s report.

It was not our intention to make such a requisition necessary in every case where adults are the sole defendants — though, doubtless, it would be the duty of the Court in any case of this character, when it was suggested that such a refe rence was proper, to cause the reference to be made.

There is no error in the decree of the Court below, and it is therefore affirmed.