Ballantyne v. Rusk

Russum, J., delivered the opinion of the Court. The appellant was a purchaser of a parcel of real estate situated on the north side of Gay street, in the city of Baltimore, at a public sale made by the appellee, as trustee, under the decree of the Circuit Court No. 2, of that city. He has excepted to the ratification of the sale upon the ground that the bill of complaint does not set forth sufficient facts to give the Court jurisdiction in that there was no allegation that the property “ could not be divided ⁶⁵⁰ without loss or injury/’ or that “ it would be for the benefit and advantage ” of the infants to have it sold. The bill was filed by Caroline E. Monroe and David E. Monroe, adults, against Clara Louisa Monroe and others, infants, alleging that by Clause No. 2 of the last will and testament of Edward J. Church, the property mentioned was devised to one Grape, in trust, for the use of Louisa Monroe, the mother of the plaintiffs and defendants, for her life, and from and after her death to the parties plaintiff and defendant absolutely; and that the trust had terminated by the death of the cestui que trust in January, 1895.

It then alleges “ that a partition, or division of the property cannot be made without a sale, owing to the nature of the property and the number of the tenants in common, and that the complainants, being of full age, are entitled to partition.” The prayer is for a sale of the property and a division of the proceeds among the parties according to their several interests, and for general relief. The bill was filed under section 116 of Art. 16 of the Code, title Chancery, sub-title Partition, which relates to lands held by descent or by purchase, and owned by infants alone or by infants and adults jointly; and the question to be determined is whether the jurisdiction is to be maintained in the absence of an express allegation that the property cannot be divided “without loss or injury.” Every tenant in common is entitled to the separate enjoyment of his interest in the common property, either by partition or by sale and the division of the proceeds thereof. Under the statute, which is a modification of the previous law on the subject, and which was intended to promote the interests of the parties concerned, if it be alleged and proved that the estate cannot be divided without loss or injury to the parties entitled, the Court, instead of ordering a partition in kind is authorized to decree a sale, and a division of the proceeds thereof among the parties entitled, according to their respective interests. The jurisdiction of the Court depends on whether the averments of the bill ⁶⁵¹ sufficiently