Reckefus v. Lyon

Stowe, J., delivered the opinion of the Court. Andrew Lyon., died seized as tenant in common with his hrother George, of certain real estate in the town of Havre de Grace, Maryland. He also died seized of an interest in certain other real estate lying in the same town, in which last mentioned real estate his hrother George and a certain J. Thompson Frieze hoth had an interest. After the death of Andrew Lyon, his heirs filed a hill for the partition or sale of all the said real estate, and made George Taylor Lyon, the hrother of Andrew, and J. Thompson Frieze, defendants.

The defendants answered, and among other things set up the defence that the hill was multifarious. That question was set down for hearing, and after argument the Court decided, that the hill was multifarious, hut intimated in its opinion that it would hear whether the complainants desired to amend their hill. The complainants, however, refused to ask leave to amend their hill, and the Court then passed a decree dis missing the hill. From this decree the complainants have appealed.

The o.nly question therefore presented to us upon this appeal is, whether certain real estate, held in common hy Andrew and George Taylor Lyon, and also certain other real estate held in common hy Andrew and George Taylor Lyon and a certain J. Thompson Frieze, could properly he divided or sold, under one bill for partition? It is a question of pleading only. No authority has been shown that such has been the practice in this or any other State. But in Massachusetts, Vermont, Indiana and Ohio, it has been expressly decided that it could not properly he done.

Kitchen vs. Sheets, 1 Carter, 138; Brownell vs. Bradley, 16 Vermont, 10 5; Hunnewell vs. Taylor, 3 Gray, 111 ; and Harman vs. Kelley, 14 Ohio, 502; Freeman on Cotenancy, ⁵⁹¹ sec. 431. All these authorities hold that it is a misjoinder to include in one ^proceeding for partition, real estate owned jointly by A., and B, and also real estate owned jointly by A. B. and C. (Filed 14th December, 1888.) The reason why