| N.H. | Jun 15, 1874
In making the partition in this case, the committee acted under sec. 25 of ch. 228, Gen. Stats., which is as follows: “When any estate is so situated that it cannot be divided so as to give to each owner his equal share therein without great prejudice or inconvenience, the same, or part thereof, may be assigned to one of the owners, he paying to the other persons interested, who shall have less than their shares, such sum of money as the committee shall award, or giving bond,” &c. It need not be said that this statute is quite imperfect, and, therefore, that many cases must arise where full and complete justice can be done only by a resort to the concurrent jurisdiction exercised by courts of equity iu the matter of partition. Crowell v. Woodbury, 52 N. H. 613; Barney v. Leeds, ante 128.
The committee here, acting beyond question in entire good faith, appraised the portion assigned to each of the tenants according to their Judgment of its value, and the question is, whether they could legally act in any other way; that is, whether under the statute above quoted they were at liberty to receive the offers or bids of Moran, and make them, instead of their own judgment of the value of the premises, the ■basis of distributing the shares, and of their award of the sum to be paid by the one receiving the more valuable portion to the other. It
There, can be no doubt, we think, but that the committee making partition under the statute should be governed, as far as practicable, by the principles of equity. Suppose the estate to be divided were a family homestead, which has come to two brothers by descent: its situation and character are such that in the judgment of the committee it cannot be divided so as to give eaclx his equal share tlxex’eiix without great prejudice or inconvenience, and they deterxnixxe to assign the whole to one, awarding a sum to be paid by him to the other: each of the heix-s is desirous of possessing the whole pi’operty, and for obvious x’easons may be willing to pay much more than the cash or market value of tlxe other half, px’ovided the whole premises be assigned to him: one has just as good right to have the whole as the other: upon what principle of equity can it be decx’eed that one shall have the whole upon paying a sum much less, perhaps, than either would be willing to pay for the option? — upon what principle is it to be decided which shall have the ancestral home, axxd which shall be compelled to x’eceive the appraised value of his share in money ? — how can the comixxittee reach a result which is required by the plainest dictates of common justice, without receiving and giving effect to offers like those made ixx the pi’esent case ? It is true, this may sometimes give one who possesses means aix advantage over one who does not; but tlxe committee have it in their power, and it would doubtless be their duty, to see that neither gets the share of the other without paying at least its fair cash valuation ; and the chances of doing injustice would seem, upon the whole, to be much diminished rather than increased by allowing some such pi’actice, which approximates the remedies of equity in similar cases. There is nothing in the statute which forbids it, and we are of opinion that no legal objectioxx exists to such a course of procedure.
Of course the committee ought to be satisfied that the offers, or bids, are made in good faith; and the money should be paid, or satisfactory security for its payment furnished, before a final judgment distributing the shares is entered up.
We are of opinion that this report should be recommitted to the same committee, unless some further objection to their competency is shown, with ixxstructions to consider the offers of either party for a choice of shares, provided such offer’s ai’e accompanied with satisfactoxy secui’ity for their performance.
Report recommitted.