Barnett v. Bernstein

Howell, J. There being no sufficient evidence before us that the •appellants have voluntarily executed tho judgment appealed from, and ■the matter in dispute being over five hundred dollars, there is no ground for dismissing the appeal, and the motion is overruled. The appeal is taken from a judgment dismissing an opposition to the homologation of an act of partition before a notary, under a judgment ■of the court ordering it to be made and referring tho parties to -said notary. Tho only ground of opposition which can be considered on this ■appeal is the failure to make an inventory within the twelve months preceding of tho property to be partitioned, which consisted of two houses and lots, which tho record shows were considered by both parties to be of equal value and were held in common by two owners, ■tho plaintiff on the one part and tho heirs of her deceased sister, Mrs. Bernstein, on the other. Tho object of the law in requiring a recent inventory is to secure an ■equal and just partition of the property in value, but where the parties agree, and other evidence shows, as in this case, that the lots or portions are equal, and there is nothing to show a suggestion from any party that the value is different from that in the last inventory taken, or that a new appraisement was demanded, the omission to make a formal inventory by a notary is not fatal. Article 1249 says: It is in tho case proscribed in the preceding article that the judge is bound to order a new appraisement. The •exact conditions contained in that article (1248) do not appear in this proceeding. Both parties seem to have demanded a partition in kind, prayed the ■appointment of experts to report thereon, and asked to be referred to [395] a notary. No demand was made for a new inventory and no fraud is suggested. The experts were appointed, and they reported in favor of a partition in kind of the two pieces of property, and the judge rendered a judgment decreeing a partition and directing the property to be divided into equal parts — one to plaintiff and the other to the heirs of Mrs. Bernstein. This judgment has become final. In the act of partition the value of each property is stated to be $11,000. All the special tutors to the heirs of Mrs. Barstcin, who are lawyers, signed this act. Under these circumstances, we think tho objection should not prevail. No good purpose would be served by another act of partition. Judgment affirmed.