Dondero v. Vansickle

By the Court, Beatty, J.: The parties to this action are co-tenants of a tract of land, and the suit is for a partition or sale of the common property. There Avas an interlocutory decree ordering a partition and appointing referees, and a final decree confirming their report of the partition made. The plaintiff appeals from both decrees. The interlocutory decree, after reciting the finding of a jury (impaneled to try that issue), that partition can be made without prejudice to the owners, proceeds as follows: ‘ ‘ Where!ore, in accordance Avith said verdict (the court haA'ing personally viewed the land and premises in controversy, and being satisfied therefrom and from the evidence in the cause given at the trial thereof, that said verdict is [392] correct, and that said land can be divided into two equally valuable tracts or parcels of land, -without great prejudice to the owners thereof, and that none of the improvements, except outside fences, are of much value where they are), it is ordered, adjudged and decreed by the court that said land and premises in controversy, including the improvements on said land, can be divided into two equally valuable tracts or parcels of land and improvements without great prejudice to the owners thereof,-the parties to this action, who each own one undivided half thereof, and that such partition ought to be, and shall be, made as follows; A direct line shall be run - through said land from east to-west and from west to east, in such manner that one-half of said land will lie and be north of said direct line, and the other half of said land south of said direct line, and said improvement on said land in controversy shall be divided and partitioned between said parcels of land and the owners thereof, and disposed of as follows: All fences standing on the exterior limits or boundary-lines of said land shall remain as they are; the yellow-colored dwelling-house, the milk-house or cellar, and the smaller of the two barns shall belong to and be removed by the party who shall in this partition get and own the north half or parcel of said land; the other dwelling-house, the out-houses, the largest of the two barns and the two corrals, which are on the south half or parcel of said land adjoining said barn on the north, shall go with said half or parcel of said land, and belong to the party who, in this partition, shall get and own said south half or parcel of said land in controversy,” etc. The appellant objects to this decree on the grounds: First, that the court exceeded its jurisdiction in making the partition itself instead of leaving it to be done by the referees; and, second, that even if the court had possessed the authority to make the partition, it proceeded in this instance upon an erroneous principle. Both points are well taken: . . First. The court can order a partition to be made, but it • cannot itself make the partition except in the indirect mode of confirming the report of the referees appointed for the [393] purpose of carrying out the order of partition. ' In this case it was settled by the pleadings that the land, including the improvements, was common property, belonging an undivided half to each party, and there seems to have been nothing for the court to decide preliminary to the interlocutory decree except the question whether the land should be partitioned between the parties or' sold, and the proceeds divided. Having decided in favor of a partition, the court should have appointed referees, and directed them to divide and mark out the laud, including the improvements, into' two parcels of equal value, instead of making the division itself into two parcels of equal area. Second. We are not aware of any precedent for requiring a severance and removal of improvements which are a part of the realty from one parcel of the land to another in order' to equalize their values, and we think such a course would be generally, if not always, injurious to the interests of the co-tenants. If, in carrying out an order of partition in a case like this, the land cannot be divided into parcels of convenient shape and situation without throwing all, or the more valuable portion of the improvements into one tract, then, unless the value of the land in the other tract is greater than in the one on which the improvements are situated, it should be increased in area until it is equal, quantity and quality considered, to the remaining tract,'with the improvements included. The statute (C. L. secs. 1338-9-40-41), and the authorities cited in.the briefs of counsel, sustain these views, and upon the grounds stated, and for the additional reason that the decrees order a partition of certain personal property not mentioned in the pleadings, the interlocutory decree must be reversed, and as the final decree merely carries the interlocutory decree into effect, that must be reversed also. It is ordered that the final decree be reversed, and the interlocutory decree also, in so far as it attempts to make a partition; and the cause is remanded for further proceedings in accordance with the views herein expressed.