Anderson Sch. Tp. v. Milroy Lodge of Free & Accepted Masons

• Decision Date: 19 December 1891
• Citation: 130 Ind. 108,29 N.E. 411
• Court: Indiana Supreme Court
• Parties: ANDERSON SCHOOL TP. v. MILROY LODGE OF FREE & ACCEPTED MASONS.

130 Ind. 108

29 N.E. 411

ANDERSON SCHOOL TP.

v.MILROY LODGE OF FREE & ACCEPTED MASONS.

Supreme Court of Indiana.

Dec. 19, 1891.

Appeal from circuit court, Rush county; S. A. BONNER, Judge.

Partition by the Anderson school township against the Milroy Lodge of Free and Accepted Masons. Judgment for defendant. Plaintiff appeals. Affirmed.

Benj. L. Smith and Claude Cambern, for appellant. D. S. Morgan, Douglass Morris, W. A. Cullen, and John D. Megee, for appellee.

ELLIOTT, C. J.

The appellant alleges in its complaint that it is the owner of the real estate in controversy and prays partition. The substance of the answer of the appellee is this: The appellee agreed with the appellant and another person to purchase the land in dispute and to erect a building thereon; that the first story of the building should be owned and used by the appellant, the second story by the third person referred to, and that the third story should be owned and used by the appellee; that the appellant should have the control of the ground, subject to the appellee's right of ingress to and egress from its part of the building. It seems very clear to us that the answer shows that the appellant has no right to partition. The erection of the building under the agreement vested the appellee with a right of access to its part of the structure, and of that right it cannot be deprived. Partition cannot be effected without destroying that right, and hence partition cannot be decreed. But this is not the only reason why the appellant is not entitled to partition, for there is this additional reason, namely, each party owns its part of the building in severalty. As each party owns its part of the property in severalty it is legally impossible that partition can be awarded, for there is no community of interest. The case is against the appellant upon principle and authority. McConnell v. Kibbe, 43 Ill. 12;Soutter v. Atwood, 34 Me. 153;Russell v. Beasley, 72 Ala. 190;Baldwin v. Humphrey, 44 N. Y. 609;Appeal of Latshaw, (Pa. Sup.) 15 Atl. Rep. 676; Freem. Co-Ten. § 87; Knapp, Partit. 39, 40. The agreement as to the construction, ownership, and use by the parties of different parts of the building is not made voidable by the statute of frauds. In support of this proposition it is sufficient to say that the agreement was fully performed, and possession taken, although other reasons might be assigned for our conclusion. The finding is well supported by the evidence. Judgment...