Coekothers v. Jolliffe

• Decision Date: 27 June 1889
• Court: West Virginia Supreme Court
• Parties: Coekothers v. Jolliffe et al.

9 S.E. 889

(32 W.Va. 562)

Coekothers

v.Jolliffe et al.

Supreme Court of Appeals of West Virginia.

June 27, 1889.

Partition—Sale.

In a suit for the partition of a mill property, which is not susceptible of partition in kind, the plaintiff, who is the owner of one-sixth of the property, offers for the whole $5,000, and claims that it is worth more than that sum, and the court at the instance of the defendant, who owns the other five-sixths, and states that he does not wish to sell, and offers to pay the fair value of the plaintiff's interest, refers the cause to a commissioner, who reports the value of the plaintiff's interest at $550. Held, it was error for the court to decree that upon the payment of said $550 the plaintiff should convey his interest to the defendant. Instead of such decree the court should have ordered the whole property to be sold at auction.

(Syllabus by the Court.)

Appeal from circuit court, Taylor county; A. B. Fleming, Judge.

John W. Mason and A. F. Haymond, for appellant.

Snyder, P. Suit in equity commenced in December, 1882, in the circuit court of Monongalia county, by John W. Corrothers against Thomas M. Jolliffe and others, and subsequently removed to the circuit court of Taylor county, where it was finally heard and decided. The facts as they appear in the record, so far as it is necessary to state them for the purposes of this appeal, are as follows: Prior to July, 1882, six of the children of Joseph Jolliffe, deceased, were the joint owners of certain real estate in Monongalia county, consisting of about 21 acres of land on which there were a mill and other buildings, with certain water-rights appurtenant thereto. One of these six children was the defendant, Thomas M. Jolliffe, and another was his sister, Catherine A. Hutchinson, who in July, 1882, sold and conveyed her undivided one-sixth interest in said property to the plaintiff, John W. Corrothers. In December, 1882, the defendant Thomas M. Jolliffe purchased and had conveyed to him the interests of four of said children, whereby he became the owner of the five-sixths, and the plaintiff the owner of the other one-sixth, of said property. The bill alleges and the answer admits that the property is not susceptible of partition in kind. The bill prayed for a sale of the property, and a division of the proceeds according to the respective interests of the parties. The defendant Thomas M. Jolliffe states in his answer that he does not wish to sell his five-sixths interest in the property, and avers and offers to pay the plaintiff for his one-sixth interest whatever sum three disinterested men will say it is worth, or whatever the court, by reference to a commissioner, may ascertain to be the value of the plaintiff's one-sixth interest. In reply to this claim and offer of the said defendant the plaintiff stated that he also wished to buy the property, and was willing to pay the said defendant the fair value of his five-sixths, to be ascertained as suggested by the defendant; and denies that because the defendant is the owner of the larger interest he has the right to purchase the property to the exclusion of the right of the plaintiff to purchase. Upon this state of facts the court made an order in which it decided that the defendant was entitled to purchase the one-sixth interest of the plaintiff, and referred the cause to a commissioner to ascertain the value of said one-sixth interest. The commissioner took depositions as to the condition and value of the property and reported that the value of the plaintiff's one-sixth was $583 and he also returned with his report the offers of two responsible persons to pay $1,100 and $1,150 respectively for said one-sixth interest. On exceptions by the plaintiff the cause was referred to another commissioner, and he reported that the said one-sixth interest was worth $550. Upon the final hearing of the cause the plaintiff repeated an offer previously made by him to pay the...