40 Wis. 357 | Wis. | 1876
I. The order of sale is clearly appealable under sec. 71, ch. 142, R. S., and, without that section, would be appealable under the general appeal law. Tay. Stats., 1685, § 11, subd. 4. For an order in a partition action which directs a sale of the premises instead of a partition thereof amongst the owners, affects substantial rights, and evidently involves the merits of the action. In this particular action the order disposes of the whole controversy.
II. We cannot doubt the power of the circuit court to order a sale of the premises, if it is made to appear that partition thereof cannot be made without great prejudice to the owners. The fact that Mrs. Fa/rnsworth has a dower interest therein, does not interfere with such jDOwer. No other construction can properly be given to ch. 142. The provisions of other chapters concerning the assignment of dower by county courts are not applicable. to this action, and do not restrict the authority of the court to order a sale, in a proper case, of the premises held in common.
III. But there is a defect in the proceedings which we think fatal to the order of sale. So far as we can perceive, the order rests entirely upon the fact that there is an outstanding life estate in a portion of the premises. But for that circumstance, it seems, so far as it yet appears, that an actual partition of the land is entirely practicable. If partition could be made in that case without great injury to the owners, it is not
Yet we are not prepared to say that the nature and extent of the respective interests of the owners are circumstances not to be considered in connection with the physical condition and qualities of the premises held in common, in determining whether partition can be made without injury.
In the present case it may be that the dower interests of Mrs. Farnsworth can be set off to her, and partition can be made between the other owners respectively, not only of their several estates in possession, but of their reversionary interests, without injury to any of them. "Whether this, can or cannot be done, has not yet been made to appear to the circuit court. That court is informed, by the first and second reports of the referee, of the value of the premises, and of different parts thereof; how they are located; the quality of the lands; the uses to which it is or may be devoted; and the character, location and value of the improvements thereon; also, that the premises may easily be partitioned without prejudice to the owners. By the third report the court is informed, that, considering all of the circumstances of the case, and particularly
Now, as before observed, we do not perceive how the mere fact that the title is complicated by the outstanding life estate, can of itself render a partition injurious to the owners, which would not otherwise have been so. If there are facts and circumstances which show that owing to the peculiar nature of the titles of the different owners, partition is impracticable, the same have not been brought to the knowledge of the court. Until that can be done, the court cannot properly order the premises to be sold. It was so held in Tucker v. Tucker, 19 Wend., 226, under a statute of New York substantially like ours. The power to convert real estate into money against the will of the owner, is an extraordinary and dangerous power, and ought never to be exercised unless the necessity therefor is clearly established.
We think it the safer course to reverse the order of sale, and thus give the circuit court an opportunity to ascertain whether, if the premises be partitioned, the value of the share of each owner will be materially less than his or her probable share of the purchase money in case the premises are sold. If so, a sale will be proper, for the injury which will warrant a sale we understand to be a pecuniary injury. As yet, there is no evidence in the case that such an injury will result to any owner if the premises are partitioned.
By the Gourt. — Order reversed.
