Paddock v. Shields

George, C. J., delivered the opinion of the court. The three complainants purchased, in Sept. 1879, from one — 344 — Dyas, fifteen hundred and ninety-one and one-half twenty-five hundredths undivided interest in the Deer Park plantation, situated in Adams County. The remainder of the tract belonged to the six heirs of Wilmer Shields, subject, however, to the right of the widow of Shields to dower. The heirs of Shields are all minors. The several interests of the parties are therefore as follows: Each of the complainants is entitled to one third of fifteen hundred and ninety-one and one-half twenty-five hundredths of the land, and each of the heirs to one sixth of nine hundred and eight and one-half twenty-five hundredths of the same, subject, however, to the widow’s dower. The tract of land is supposed to contain about twenty-five hundred acres. A division of the land, upon the supposition that each party got property of average value, would result in giving to the complainants each about five hundred and thirty acres, and to each heir of Shields about one hundred and fifty-one acres. The complainants filed this bill in October, 1879, for partition. In the bill they set out the inequalities of the several shares, and insist that no division can be made under the statute. They, however, ask for partition, if it can be made, and, if it cannot, they ask for a sale of the land, and a division of the proceeds. The widow answered, resisting a sale, and stating that a partition could easily be made into two parts, so as to give the complainants their interest jointly as they purchased from Dyas, and the heirs of Shields their interest also jointly. She insisted also that such a partition would be beneficial to the heirs, and a sale would be prejudicial to them. The guardian ad litem for the infants made the usual formal answer. The deposition of a witness was taken on behalf of the complainants, which stated, what was quite evident without proof, that the land could not be divided among the several parties interested in the mode pointed out by the statute, since the shares of the several owners were unequal. The case was set down for hearing, and the Chancellor decreed that commissioners be appointed, who should set off to the com.plainants in solido fifteen hundred and ninety-one and one-half twenty-five hundredths of the land, and the remainder to the heirs of Shields. From this decree the complainants appealed. The complainants in their bill, and in their arguments here, — 345 — proceed on the idea that the mode pointed out in the Code of 1871, ch. 26, for the partition of estates held by co-tenants is exclusive; and that when partition cannot be made in that particular way, no partition in kind can be made at all, and the land must necessarily be sold and, the proceeds divided. We do not consider this view correct. The statute provides for a partition by allotment through ballots, and manifestly this mode can be adopted only when the shares of the co-tenants are equal. If it be held that this mode is the only one that a court of equity may pursue in making partition, it would be to deny the right of partition in kind at all, except in cases where the co-tenants’. shares are equal. This construction would also prevent the court from providing for well recognized rights of the several tenants in making partition. For instance, it is well settled that if one tenant has made improvements on the common property, he is entitled to compensation for them, either in money, or, as is most usually done, by causing the part improved to be set off to the improver, if it can be done without injury to the co-tenants. So it is also settled, that, when one or more of the co-tenants have aliened, so as to give the alienee an interest only in a particular part of the common property, a partition will be ordered, so as to protect the right of such alienee if practicable and consistent with the rights of the others. The statute also provides only for a partition allotting the separate share of each one of a number of co-tenants, although only one may ask for partition, and the others may prefer to hold their property in common, as, in many cases, it would be for their interest to do. The error in the position of the complainants has its foundation in the supposition that the jurisdiction of the Chancery Court in partition proceedings rests solely upon the statute. This jurisdiction is very ancient in courts of equity, antedating the reign of Elizabeth, and is now, and has been for a long time, one of their most useful and salutary powers. 1 Story Eq. Jur. § 646, et seq. ; Freeman on Cotenancy and Partition, § 420, et seq. At common law, courts of law had no jurisdiction to order partition, except among coparceners. Joint tenants and tenants in common were without remedy in this — 346 — respect. And the rule was held so strietly that partition was denied to the alienee of a coparcener against the other copar-ceners, though it was granted at the instance of a coparcener against the alienee. The remedy in courts of law was extended to other cases than coparceners by statute. It is settled that none of the English statutes are in force in this State. Sessions v. Reynolds, 7 S. & M. 130; Boarman v. Catlett, 13 S. & M. 149; Jordan v. Roach, 32 Miss. 616. The statute under consideration vests the exclusive jurisdiction in partition proceedings in the Chancery Court. If this statute is constitutional, in divesting the common-law courts of a recognized power, then, if it is also exclusive as to the mode pointed out in the statute, it would follow that no partition could be made, except when the shares are equal. And if, notwithstanding the statute, the common-law courts retain their ancient common-law power to make partition, then there would be no remedy for a partition, when the shares are unequal, except only in cases where the co-tenants were coparceners. It is not to be presumed that the legislature intended such a result. The right of a co-tenant to have his share ascertained and set apart to his separate use is said to be absolute, to be recognized and enforced by the courts under all circumstances, however inconvenient and injurious its exercise may be to the others interested. Freeman on Cotenancy and Partition, § 539. We cannot suppose that the legislature intended to limit this right to cases where the interests of the tenants were equal, and in all other cases to compel the parties to submit to a sale in order that there might be a division of the proceeds. At common law, and by the general principles of equity jurisprudence, there was no power to make a sale for partition. The power to order a sale is purely statutory, and can only be exercised in the cases provided by statute. Sect. 1829 of the Code only authorizes a sale when from “ the nature and condition of the lands, and the number” [not the inequality] “ of shares into which they must be divided, it is impossible to make partition thereof fairly and equally without impairing the value of the property.” This is the language of the statute. It does not provide, as contended by the appellants, that a sale shall be made in all cases where the — 347 — shares are unequal, and in all cases where the particular mode pointed out by the statute in which the proceedings shall be carried on cannot for any reason be adopted. So, if the appellant’s position, that the statutory mode is exclusive, is correct, it would follow that there could be no partition except when the shares were equal, and no sale except when the shares being equal, a fair division could not be made. But it is said the decree is erroneous in ordering a division to be made into two tracts, — one for the complainants, and one for the heirs of Shields. As to -the latter, they make no complaint of the decree. They are minors, and incapable of making an election as to whether they would have partition among them of the share allotted to them jointly. They had not asked for partition either by themselves or guardian. The court found as a fact, that it would be for their interest in this proceeding to have their share set off in solido as against the share of the complainants. This appears also to have been a wise and proper decision for them and their mother, who had a right of dower in their interest. It would be more convenient and useful that this dower should be taken from the whole tract thus set over to the heirs, so as to be in one body. As to the complainants, if we are to regard them, as we think we must under the bill, as asking for a separation of the several interests, they have the right to have the partition, and the decree is a proper step in that direction. After their joint share shall be set apart, and the division confirmed by the court, it will be proper, on the motion of either or all of them, to appoint new commissioners to make partition of their common share among the separate owners ; and when this is done, as their shares will be equal, it will be proper that the allotment shall be by ballot. We announce, as the true rule on the matters in controversy here, that th'e jurisdiction of the Chancery Court to make partition, in all cases of a co-tenancy, results from its original powers, and is not derived from or dependent on the statute ; that the provisions of the Code regulating the proceedings in partition are applicable only to cases where the shares of the co-tenants are equal, and where, also, no equitable circumstance exists which would require, in order to secure a right — 348 — recognized by courts of equity in any one interested in the common property, that a different mode of partition shall be adopted; that the complainants’ right to have their shares set off is absolute, but that this right does not carry with it the power to force a separation of the interests of others who are willing to hold the property in common between themselves. It is also true, that, when there are several claiming under a common source, whose separate interests among themselves are equal, but unequal as compared .with the other co-tenants, the court may, in making partition, have their interests set off together in the first instance, and then proceed to have a partition of this common interest among them by allotment by ballot, as required by the statute; that the statutory mode of allotment by ballot is to be pursued in all cases where it is applicable, but is not exclusive, and may be departed from whenever necessary. Decree affirmed and cause remanded.