Henry Quellmalz Lumber & Manufacturing Co. v. Roche

Hart, J. (after stating the facts). It appears from the record that the plaintiff and Thos. J. Roche were tenants in common of a tract of timber land and that Roche conveyed his interest in the timber to the defendant Day. The plaintiff brought suit for partition and made both Day and Roche defendants. The court called the case for trial before the twenty days under the statute required of Roche to answer had elapsed. This was error. It is generally provided by statutes governing procedure in partition suits that all parties having or claiming any interest in the land are not only proper but necessary parties to the suit. The reason is that there may be a decree which will completely and effectually adjust the rights and equities of all parties in interest. 20 R. C. L., p. 757, section 41 and 30 Cyc. 201. Our statute provides that where lands shall be held in tenancy in common any one or more of the. persons interested may bring suit for partition of the premises according to the respective rights of the parties interested therein, and for a sale thereof, if it shall appear that partition can not be made without great prejudice to the owners. Kirby’s Digest, section 5770. Our statute also provides that every person having an interest in lands which are the subject of partition shall be made a party to the partition suit. Kirby’s Digest, section 5772. In Waldron v. Taenzer, 79 Ark. 16, it appeared that the appellant owned an undivided one-half interest in the lands which had been partitioned in a suit to which he was not a party. The court said that the lands could not have been partitioned legally under the statute without making him a party. In this State, courts of law and equity have concurrent jurisdiction for the partition of real estate. Dunbar v. Bourland, 88 Ark. 153. This court has held that a deed to growing trees authorizing the grantee to cut and remove the same within a specified time conveys an interest in the lands. King-Ryder Co. v. Scott, 73 Ark. 329, and Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192. It follows that the court erred in proceeding with the partition proceeding, without service upon Roche. The decree could not bind Roche unless he was served with summons for the time required by the statute, or he entered his appearance to the suit. He did neither, and it was error to proceed without him. If he had been before the court, the court might have divided the lands so that the plaintiff might have allotted to him a certain part of the land and timber and then allotted to Day the timber which stood on the land allotted to Roche. Again, the court might have ordered the land and the timber sold as might be to the best interest of all parties. Inasmuch as the case must be reversed for the error in not making Roche a party to the suit, we deem it advisable to call attention to an error of the decree in another respect. ■ The court found that because Day filed an offer to let the plaintiff divide the timber and the defendant take choice of the tracts, or to let the defendant Day divide the timber and plaintiff take choice, this was conclusive evidence that the timber in controversy was susceptible of division in kind. As we have already seen, a conveyance of the timber by Roche to Day gave the latter an interest in the land. The statute is that there shall be a sale of the land if it shall appear that partition can not be made without great prejudice to the owners. The question is not whether the timber can be divided, but whether or not the timber and the land can be divided without prejudice to the rights of all parties interested. Section 7219 provides for the appointment of commissioners to make the partition. The mode of division offered by Day might or might not be just and practicable in this case. It certainly would not do to lay it down as a rule that could be applied in any case; for one of the parties might be a skilled land or timber man and the other not. This would give the practical land and timber man a decided advantage if he conld draw a line and require the other to take his choice, or vice versa. Under our statute, the interested parties have the right to have the land divided by three disinterested persons if it is susceptible of division without prejudice to the rights of the owners. It follows that the decree will be reversed and the cause remanded for further proceedings according lo the principles of equity and not inconsistent with this opinion.