Potts v. Gray

Campbell, C. J., delivered the opinion of the court. Sect. 2577 of the Code of 1880 was improperly applied in this case, because the proceeding, which terminated in a partition of the lands was begun, not by the appellee, but by another, and her “ cross-petition,” as it was called by her solicitor, was not necessary to the procurement of the decree made. If her petition for the appointment of commissioners to make partition had not been added to her answer, the de-cre'e finally made would have been the same. Under the Code of 1871, sect. 1810, and the amendatory act on page 119 of Acts of 1875, it was lawful for Hudson, as executor, to proceed for a sale of the land for a division of the proceeds, and it would have been proper for the court, on the answer of the appellee, and without a cross-petition, to have ordered partition without a sale, although Hudson’s petition sought to have a sale. Sect. 2577 of the Code of 1880 applies in favor of a complainant, who initiates the proceeding for partition. It is intended to confer power on the court to make the common property bear the cost of partition, made for the good of all, by allowing a solicitor’s fee for instituting and conducting the proceedings, without which partition or sale would not have been made; and it is not applicable where partition or sale results as an incident of a suit begun by another than him who claims allowance for a solicitor’s fee. [62] The section cited applies both to a partition and a sale for division of proceeds, and should not be applied to a partition where it would not be applied to a sale, if that was decreed. If the decree in this case had been for a sale of the lands (for which Hudson’s petition specially prayed), it would not be contended that a fee could have been allowed the solicitor of appellee, because she was not complainant in the proceeding which thus terminated. Neither can she have the benefit of the section cited merely because she made her answer a cross-petition, and thereby sought what would have resulted, if she had not done this. Decree reversed, and corrected as to the allowance of solicitor’s fee, and affirmed as to all else.