Greer v. Henderson

Warner, C. J. The error assigned to the judgment’’of the Court below in this case, is in overruling the demurrer to the complainant’s bill. This is a bill filed for a partition of certain lands against the defendant, alleging a complicated state of facts, as well as fraud in the sale of the lands. The jurisdiction of Courts of Equity in cases of partition is a very ancient one. Story’s Com. on Equity, 599, sections 646, 647, 648, 649. By the Revised Code, it is declared that Courts of Equity in this State have jurisdiction in cases of partition, whenever the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just. The Court will mould its decree in such cases to meet the general justice and equity of each person entitled — sections 3127, 3129. In all cases of fraud, (except fraud in the execution of a will,) equity has concurrent jurisdiction with the courts of law. Revised Code, 3115. The facts alleged in the complainant’s bill, in our judgment, make a proper case for the exercise of the powers and jurisdiction of a Court of Equity, and that Court having first acquired a jurisdiction of the cause, the demurrer thereto was properly overruled. Let the judgment of the Court below be affirmed.