90 Ky. 189 | Ky. Ct. App. | 1890
delivered the opihion of the court.
The appellant and the appellee owned in fee-simple a tract of land in the county of Kenton, containing about sixty-eight acres, and known as the Latonia Springs property. The appellee, by her petition in equity, filed in the Kenton Chancery Court, asked to have her interest in. the land set apart or severed from the interest of the appellant. The appellant owned a greater interest than the appellee, the former owning two-thirds and the latter one-third of the entire tract.
The appellant, by his answer, alleged that the land could not be divided without impairing its value, and wanted the whole land sold and the proceeds divided.
In this case the judgment or order of partition was proper, but the division being unequal, and the appellee receiving more than one-third of the land in value, it was error to require the appellant to receive in money a sum sufficient to equalize the respective interests, and if the division can not be made without requiring a pecuniary compensation to produce this equality, the land should be sold, and not partitioned. It is true that courts of equity, in the partition of land between coparceners, sometimes permitted the payment of money to equalize the allotment, and this practice would now be tolerated when it was to the interest of the heirs at law, and the-money could be paid out of the fund to be distributed from the common estate; but under our statute, where one tenant in common, or joint tenant, seeks a division, the other joint tenants may ask for a sale of the whole, on the ground that a division can not be made
For this reason the judgment is reversed, and remanded with directions to partition the land, if it can be done without materially lessening the value of the interest of the joint tenants, or either of them ; and if this can not be done, the entire tract should be sold. As the record now stands, we see no reason why the division can not be made.