Brown v. Mooney

Fish, J. (after stating the foregoing facts). As will be-seen by the official report, Mooney, Wood, and Boone filed their petition for a partition of certain mining property, which was owned in common by them and Brown. They stated the interest of each in the property, alleged that it could not be-divided by metes and bounds, and prayed that there should be a sale of the same and a distribution of the proceeds thereof among the several owners in proportion to their respective interests. .Brown filed certain objections to a partition of the property. The court, without the intervention of a jury, tried the case, passed simply upon the question wdiether there should be a sale of the property for the purposes of partition, ordered a sale of the property, fixed a date for the same, appointed commissioners to conduct it, and required the commissioners to re [334] turn their proceedings to the next term of the court. Brown filed a bill of exceptions, in which he alleged that the issues of fact raised in the case should have-been determined by a jury, and that the judge, over his objection, refused to submit them to a jury and passed upon the same himself. This, as stated in the brief of his counsel, is the only point involved in the case, as it comes before this court. The plaintiff in error contends that, under section 4791 of the Civil Code, the issues of fact in the case should have been passed upon by a jury. Under that section, he had the right to “file objections to the right of the [applicants], and the writ of partition,” and, “by way of defense, [to] show any good and probable matter in bar of the partition asked for,” or to show a want of title in the petitioners, or either of them, and to have an issue “made up and tried by a special jury, as in appeal cases.” But, in the view which we take of the case, the objections which he filed did not bring the case under that section of the code. He raised no issue in reference to the title of either of the petitioners. Did he set up “any good and probable matter in bar of the partition asked for” ? We think not. The matters which he set up were not in bar of a partition of the property. They were simply to the effect that it would not be equitable or just to him for the court to order a sale of the property, for the purposes of partition, under the circumstances which then existed. The right of the applicants to have the property partitioned was not questioned, but the question raised was, whether the interests of the objecting party would be injuriously affected by a sale of the property while there was an outstanding lease upon it and it was in the hands of the lessees, who could, and he believed would, prevent would-be purchasers from examining the mine. This raised no bar to the partition prayed for, but was matter addressed to the sound discretion of the judge, under section 4796 of the Civil Code, which provides that, “In any extraordinary case not covered by the foregoing provisions, the court may frame its proceedings and order so as to meet the exigency of the case without forcing the parties into equity; and the court may deny a sale or partition altogether, if it is manifest that the interest of each [335] party will not be fully protected.” By his objections he made an extraordinary case not covered by the provisions of the section of the code upon which he relies, but a case to meet the exigencies of which the court could so frame its proceedings and order as to fully protect the interests of all parties concerned therein. His objections were in the nature of an equitable answer to the application for partition, in which he undertook to show to the court that if a sale were had for the purposes of partition, under the circumstances then existing, his interests would not be fully protected, and in which he asked for equitable relief against his cotenants, the petitioners. He came into court not denying the right of the applicants to a partition, not questioning their titles to the respective interests in the property which they set up, but in effect applying for a postponement of a partition until the circumstances should be such as to render it fair and equitable to him for one to be had,’ and also in effect asking the court to so frame the proceedings as to fully protect his interests without forcing him into equity. Section 4785 of the Civil Code, in reference to proceedings for partition in equity, provides that the court may, in its discretion, “postpone or deny either a partition or a sale, if it shall appear that the present or prospective interest of each tenant may not be protected thereby.” The proceedings under the statutory provisions “for partition of lands are in the nature of a proceeding at equity, in which the court has all the power and- jurisdiction for hearing and determining the various matters in dispute between the parties, in respect to their respective titles, and awarding a partition, according as he shall find the parties entitled, as fully and completely as if it were a bill in chancery for that purpose.” Griffin v. Griffin, 33 Ga. 109; Hamby Mountain Gold Mines v. Calhoun Land & Mining Co., 83 Ga. 317. We think it is clear that the case made by the objector was one which did not come under the provisions of section 4791 of the Civil Code, but which was addressed to the sound discretion of a judge of the supei’ior court, clothed with the comprehensive equitable powers conferred upon him by the other sections which we have cited and from which we have quoted. The only right to have the issues of fact arising [336] upon an application for partition passed upon by a jury is that conferred by section 4791 of the Civil Code. Rodgers v. Price, 105 Ga. 67. This case not being covered by the provisions of that section, the judge below committed no error in passing upon the application for a sale of. the property, for the pui-T poses of partition, without the intervention of a jury. We have dealt with the only question presented for our determination, viz., whether or not the plaintiff in error was entitled to a trial by jury. It is not incumbent upon us to pass upon any other question. Judgment affirmed. All the Justices concurring.