Clements v. Seaboard Air-Line Railway Co.

Atkinson, J. The Civil Code (1910), § 5358, .provides: “In all cases where two or more persons are common owners of lands and tenements in this State, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements are to be divided, any one of such common owners may apply to the superior court of the county in which such lands and tenements arc situated, . . for a writ of partition, which application shall be by petition setting forth plainly and distinctly the facts and circumstances of the case, describing the premises to be partitioned, and defining the share and interest of each of the parties therein.” Section 5355, provides: “Equity has jurisdiction in cases of partition, whenever the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just.” Section 5357 provides: “The court will mould its decree, in every case, to meet the general justice and equity of each person entitled, and in its discretion may 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.” Section 5506 provides: “For eyery right there [765] shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.” Held: 1. Under application of the above-quoted laws, where three railway companies own and use in common a union depot, and thereafter one of such companies becomes insolvent and is placed in the hands of a receiver by a court of competent jurisdiction, and the court renders a decree authorizing and directing such insolvent railroad to abandon and discontinue the operation of its line of railway into such union depot, and further authorizing the sale of its property, not as a going concern, or to be used as a going concern, but in a dismembered condition; and where under such decree the property is so sold, and is purchased by a private individual, not to be operated as a railroad, such individual is entitled to have such union depot partitioned in equity, the court having the power to protect the interests of all parties by appropriate- decree. In this connection see Hill v. Woodward, 100 Miss. 879 (57 So. 294, 39 L. R. A. (N. S.) 538, 31 Ann. Cas. 390). (a) This case is for decision on demurrer, and it does not appear that there was 'any contract between the parties providing for a perpetual joint ownership or suspension for any length of time of the right to a partition. In the circumstances it will not be decided what effect, if any, such an agreement would have on the right of the plaintiff to an equitable partition. The cases of McInteer v. Gillespie, 31 Okla. 644 (122 Pac. 184, Ann. Cas. 1913E, 400), Shelby v. Shelby, 192 Ky. 304 (233 S. W. 726), and other cases cited in 20 R. C. L. 717, § 3, and other similar eases on the briefs of the attorney for the plaintiff in error, have not been overlooked. (b) This cpurt will not take judicial cognizance of orders granted by the railroad commission of Georgia. (c) The allegations of the petition show unqualified ownership of an undivided interest in fee in the property sought to be partitioned, and it is unaffected by any statute restricting enjoyment thereof, such as applies to provisions for a year’s support for the family out of the estate left by a person deceased, or to exempted property under the homestead laws. 2. In such partition, where two of the joint -owners have used such union depot but have not excluded the purchaser of the interest of the third joint owner from its use as a depot, such purchaser would not be entitled to one third of the fair rental value of the premises, for the time preceding the decree. 3. The value of the property should be fixed and determined by proper decree, and the privilege should be given to the other eotenants, or either of them, of paying to the purchaser his third of such value; and upon the-failure of the other cotenants or either of them to exercise this privilege, then the property should be sold and out of the proceeds one third thereof, after paying the costs and expenses of the proceeding, should be paid to the applicant, and the balance of the proceeds divided between the two remaining cotenants. 4. The petition does not show upon its face that the plaintiff was estopped by laches from applying for equitable partition. [766] No. 3946. September 20, 1924. 5. Applying the above principles, the court erred in sustaining the demurrer to the petition as amended, and dismissing the action. Judgment reversed. All the Justices concur. Eldridge Cutts, for plaintiff. Quincey & Bice, Whipple & McKenzie, and James F. Wright, for defendants.