2 Barb. 599 | N.Y. Sup. Ct. | 1848
At common law, as well as by statute, partition between tenants in common of real property, is matter of right, where both parties cannot, or either of them will not, consent to hold and use the property in common. (Smith v. Smith, 10 Paige's Rep. 473, and cases cited. 2 R. S. 321, § 23, 329, § 80.) The statute is imperative that the court shall determine the rights of the parties in the lands of which partition is sought, and shall give judgment that partition be made, &.c. As then the plaintiffs in this suit are seised, by virtue of the assignment to them, of an estate for life in the premises described in the pleadings, as tenants in common with the defendants, they have an absolute right, under the statute, to a decree of partition. The cases cited on the argument going to show that a power of sale is not well executed by a partition, (Willis on Trustees, 143, n. h.; McQueen v. Farquhar, 11 Ves. 467,) do not interfere with this right, because the plaintiffs have something more than a mere power; they are absolutely seised of a legal estate for life. They have succeeded to all the estate of the tenant for life, and can convey to their grantee an absolute estate to that extent. Partition must therefore be decreed between the defendant Susannah Drake, as seised in fee
The plaintiffs, however, ask for more than a partition; they demand a sale of the whole premises, so that out of the avails they may receive a sum in gross for their interest in the premises. And this is sought, not because the premises are so situated that partition cannot be made, but because a sale would probably be more profitable to them than a division in kind. The statute authorizes a sale only where it shall appear to the court that the premises are so circumstanced that a partition cannot be made without great prejudice to the owners. (2 R. S. 330, § 81.) The statute refers to comparative prejudice between an actual partition and a sale; and its language will not justify a sale where the aggregate amount of benefits from a sale, instead of a partition, will be small in reference to the value of the property. (10 Paige, 475.) And the prejudice spoken of means a prejudice to all the owners, and not to a part only. In this case, the absolute owners in possession, of two-thirds of the premises, and the owner of the reversion of the remaining third, would all be prejudiced by a sale instead of a partition; and the only parties that could by possibility be benefitted by a sale, would be the owners of the life estate. And as to them even, there is no proof that they would be at all benefitted. All that is merely a matter of conjecture, on their part; and I cannot conceive why they cannot sell and obtain, on a sale, the full value of their estate after an actual partition shall be made. Its value can easily be ascertained, and the sagacity of capitalists can readily measure it. Except this conjecture there is no reason offered for a sale; and that is by no means sufficient to justify me in decreeing that a partition would work great prejudice to the owners. The application for a sale must therefore be denied.
There is nothing in the objection of the want of parties, The
