Brendel v. Klopp

Robinson, J., delivered the opinion of the Court. This is, in some respects at least, a remarkable case. The bill is filed under sec. 99, Art. 16 of the Code as amended by the Act of 1886, ch. 232, for the sale of two and one-half acres of land, because it cannot be divided in kind, without loss or injury to the parties in interest. The lot of ground is subject to a leasehold estate of ninety-nine years, renewable forever, upon the payment of an annual rent of six cents, which leasehold estate is held in trust for the use and benefit of the High German Lutheran Church in Baltimore City.

The inheritance subject to this leasehold interest, belongs to seventy-five persons, and is valued at $125. The lot is not, according to the proof, susceptible of partition without loss and injury to the parties in interest, and thereupon the Court decreed it should be sold. What advantage the owners of the inheritance are to derive from a sale, is not apparent, certainly upon the face of the record, for the costs of suit to the' date of the decree amount to $167.55, to which must be added commissions to the trustee, cost for advertis ⁵ ing, recording, &c. So instead of bringing money into Court for distribution among the parties in interest, the proceeds of sale would be altogether insufficient to pay the costs of the proceeding.

And then again, if the lot was divided into seventy-five parts, it would be impossible to divide the annual rent of six cents between seventy-jive persons. It does not "therefore seem to us that the parties are to derive any benefit either from a sale or partition. But each of the seventy-five persons is entitled to an undivided interest in the inheritance, and if they will not come to terms as between themselves, and will insist that the law shall take its course, the Court is bound to decree a partition or sale. Partition was at common law a matter of right, but under our Code, if it cannot be made without loss or injury to the parties, the Court must decree a sale of the property.

We all remember the case before Lord Eldon, for the partition of a house, and as a partition seemed to be ruinous, in mercy to the parties, the cause was continued so that they might come to terms between themselves. But the defendant having refused either to buy or sell at a price named, the commission was ordered, and upon its return exceptions being filed to its ratification by the defendant, on the ground that the commissioners had allotted to the complainant all the chimneys and fire-places, and the only stairway in-the house and all the conveniences of the yard, Lord Eldon overruled them, saying he did not know how to make a better partition for the parties; that he granted the commission with great reluctance, but was bound to do so by authority, and that the parties ought to have come to terms between themselves. Turner