Cox v. Kyle

Terral, J., delivered the opinion of the court. The decree of the, chancery court in this case approves the application of the whole purchase money to the complainants, two of the co-tenants, on the ground recited in the decree, that the other co-tenants were indebted to complainants, and yet there is no allegation in the bill nor any evidence in the record, of any such indebtedness. This appears to us to be error. . Another error is in decreeing a sale of the common property upon the pleadings and proofs in the case. The bill alleges that the tract of land cannot be divided in kind without impairing its value, and that it would be for the best interest of all the parties for the same to be sold for a division of the proceeds thereof. The answer of Lewis Cox avers that the land is susceptible of a division in kind, and that it would best serve the interests of all parties for it to be divided in kind, and there is no proof in the record on .the subject. The common law gave to joint owners of land a right to have a partition in kind, and the right of selling the land and of dividing the proceeds given by the statute, is an innovation upon [670] the common law, and as it takes away from the owner the right to keep his freehold in kind, it must be strictly pursued, and it must appear from the record that an equal division cannot be made, or that'a sale of the land will better promote the interest of all parties than a partition in kind. Tindall v. Tindall, 3 So. Rep., 581; Roberts v. Coleman, 37 W. Va., 157; Zirkle v. McCue, 26 Gratt., 532; Freem. on Co-tenancy, sec. 537. The want of any proof of the necessity or of the propriety of the sale is apparent upon the face of the record. The recital in the. decree of the taking of oral proof does not cure the defect. Such oral proof is admissible in matters of this kind only when nqtice is filed or the written agreement of the parties is made therefor under § 1764, Ann. Code 1892. The decrees of the chancery court for the sale of the land for division, and of the confirmation of said sale, are Reversed, and the ease is remanded for a rehearing.