Wilson v. Green

Irving J., delivered the opinion of the Court. The question in this case arises upon exceptions to a trustees’ report of sale of real estate, which had been decreed to he sold for the purposes of partition, and had been purchased by the appellants at the trustees’ sale. The purchasers excepted on the ground, that the proceedings were supposed to be irregular and defective for the want of jurisdiction on the part of the Court, and allege this to be apparent on the face of the record. All the parties to the bill, both complainants and defendants, are adults.

The bill was filed for sale for the purposes of partition, upon the alleged ground, that the estate could not be divided amongst the large number of heirs without greatly impairing the value of the estate. The facts were admitted in the answer, and were' also proved. Being adults, it is contended on the part of the appellants, that they were capable of dividing it among themselves, or of making a joint sale, and that having the power and remedy in and among themselves, they need no assistance, and cannot invoke the aid of a Chancellor, without averring and proving that unavailing efforts have been made to secure division or sale without resort to the aid of the Court. Sundry authorities have been cited in support of this proposition, including, with Story’s Equity Jurisprudence and Daniel’s Chancery Practice, Alexander’s Chancery Practice, pages 250-257.

Prior to our Code this may have been the law, but since the adoption of the Code, section 99, of Article 16, has uniformly been supposed and held, in the State, to authorize a Court of equity to order a sale for the purpose of partition, whenever it was alleged and proved that the property sought to be sold could “ not be divided without loss or injury to the parties interested.” ⁵⁴⁹ The jurisdiction of the Court in such case is made to depend upon that fact, and that fact alone ; and by express terms the section is made to apply “ to cases where all the parties are of full age, and to cases where all the parties are infants, and to cases where some of the parties are of full age and some infants, and to cases where some or all the parties are non compos mentis; and also to apply to cases where any or all the parties are non-residents.” If the property cannot be divided without loss or injury to the parties interested, the law does not require them to go through the useless formality of attempting the division, and disagreeing about it, or of endeavoring to agree among themselves as to terms of sale ; but the fact that it cannot be divided without loss and injury entitles any party at his election to the aid of the Court of Chancery to secure a sale thereof. The concluding words of this section, 99, are, “and any party, whether of full age, infant, or non compos mentis, may file a bill under this section ; an infant by his guardian or prochein ami, and a non compos by his committee or trustee.” All that it is necessary to allege in a bill is, that which it is necessary to prove, and nothing more. In this case, the bill comes fully up to the requirements of the statute in respect to jurisdiction. Its language is “ and your orators further show, that the said real estate is not susceptible of division, and cannot be divided without