17 D.C. 559 (D.C.D.C. 1888), 10,945, Willard v. Willard

Docket Nº:In Equity. 10,945.
Citation:17 D.C. 559
Opinion Judge:MR. JUSTICE MERRICK:
Party Name:HENRY K. WILLARD v. JOSEPH C. WILLARD.
Attorney:MESSRS. MORRIS and HAMILTON, for complainant. MR. WM. F. MATTINGLY, for defendant.
Case Date:October 22, 1888
Court:Supreme Court of District of Columbia
 
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Page 559

17 D.C. 559 (D.C.D.C. 1888)

HENRY K. WILLARD

v.

JOSEPH C. WILLARD.

In Equity. No. 10,945.

Supreme Court, District of Columbia.

October 22, 1888

Partition is a matter of right between joint tenants or tenants in common of real estate, and no demand is necessary before the bringing of a suit for that purpose.

APPEAL from a decree for partition, upon a bill filed for that purpose.

THE CASE is sufficiently stated in the opinion.

MESSRS. MORRIS and HAMILTON, for complainant.

MR. WM. F. MATTINGLY, for defendant.

OPINION

MR. JUSTICE MERRICK:

This was a suit instituted for partition under the act of 1876.

It is conceded that if the Court can rightfully exercise the jurisdiction, there is no doubt that partition is not so good a remedy as a sale, because, from the nature of the property, it would yield a larger sum upon a sale than it would yield by partition, it being shown to be a large property peculiarly adapted to hotel purposes, and so advantageously situated that it would, in all reasonable probability, in the judgment of men competent to judge in regard to those subjects, bring a much larger price if sold as a whole than it could possible bring if it were divided into parts or distributed into different lots between the two proprietors.

There is a lease upon the property, which is to expire within the next two or three months. The existence of that lease, according to the testimony in the cause, does not present any impediment at all to the procurement of the full price of the property, as the time of the expiration of the lease is so near that it is an element that can hardly be appreciated in determining whether or not the property should be sold before or after the lease shall have expired; so that there is no impediment on that ground.

The chief objection which was named by the defendant in the cause, as to the granting of relief, either by partition or by sale, was that there had been no previous demand by the party therefor.

We are not at all aware that there is anything in the law which requires a demand upon the party before the institution of the suit; and in a case like this, where the defendant by his answer resists the partition or the sale and demands that the thing shall remain in statu quo , it is apparent that it would have been an idle ceremony if there had been a previous...

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