Darling v. Darling
| Decision Date | 31 October 1911 |
| Docket Number | 11833 |
| Citation | 96 N.E. 939,85 Ohio St. 27 |
| Parties | Darling v. Darling. |
| Court | Ohio Supreme Court |
Tract of land partly in one county and partly in another - Action for partition - Commissioners appraise county parts separately - Sale of land ordered - Tenant in common elects to take part at appraisal - Court approves and orders recall of sale - Another tenant elects to take same land - Moves court to vacate previous election - Rights of electors.
At the February term of the court of common pleas of Richland county, for the year 1908, in an action for partition of certain land, one tract situate in Ashland county and the other in Richland county adjoining, the commissioners appointed by the court to make partition, reported that the same could not be made without manifest injury to the value of the estate, and appraised the land in Ashland county separately from the appraisal of the tract in Richland county, which report was approved by the court. No election was made by any of the tenants in common to take any part of the estate at the appraised value.
Thereupon at the same term, the court ordered a public sale of the entire estate, and the sheriff in pursuance of a writ for that purpose advertised that said premises would he publicly sold on the 26th day of September, 1908.
At the subsequent September term and about five days prior to the day of sale, one of said tenants in common, without notice to any of his co-tenants, and without their knowledge, announced to the court that he elected to take the Ashland county land at its appraised value. The court approved the election and adjudged said tract to him, and also ordered a recall of so much of the order of sale as related to the land so elected.
Another of the tenants in common, on discovering said proceedings also elected to take the same land, at its appraised value which election was disapproved by the court. The latter co-tenant moved the court to set aside and vacate the election first made and the orders concerning the same. This motion was overruled. On error, the circuit court reversed the orders and proceedings concerning said first election and remanded the case for further proceedings.
Held The circuit court did not err and its judgment is affirmed.
The facts are stated in the opinion.
Mr. H. T. Mannor and Mr. C. H. Workman, for plaintiff in error.
Mr. T. Y. McCray and Mr. Glenn M. Cummings, for defendants in error.
The plaintiff in error and certain defendants in error are tenants in common, in certain lands, fifty acres of which are in Ashland county, and the other lands, consisting of about three hundred and twenty acres, are situate iii Richland county.
On the 4th day of March, 1908, Camille King, one of said tenants in common, filed in the court of common pleas of Richland her petition praying for the partition of all of the lands, and she alleges that she is seized in fee simple of one-seventh part, and that G. L. Darling, Willard E. Darling, Herbert Darling, Laucena P. Glasgow, Florence Statler and Rella M. Stichler, are each seized of one-seventh part as tenants in common with the plaintiff.
Most of the defendants waived summons and entered their appearance. The others were duly served with process.
On the 4th day of August, 1908, the court found the interests of the several tenants as alleged in the petition and ordered partition ac- cordingly. Commissioners were appointed to make partition, if the same could be made, if not, to appraise the premises.
On the 20th day of August, 1908, the commissioners reported that the estate could not be divided without injury to the value thereof, and returned appraisement of the lands in Ashland county separate from the appraisement of the lands in Richland county. The record shows the following: "And thereupon neither of the said parties electing to take the said estate or any portion thereof at its appraised value, on motion of the plaintiff, it is ordered that said estate be sold at public auction according to law, and that an order issue therefor to the sheriff of Richland county."
The writ issued the next day.
The foregoing order of sale was made at the February term, 1908, and on August 20th of that year.
The next step disclosed by the record was taken on the 21st day of September, 1908, when W. E. Darling filed his application to take the premises (fifty acres) situate in Ashland county at the appraised value thereof, and the record says:
On the 26th day of October, and at the September term, 1908, the sale of the Richland county lands was confirmed and deeds ordered. This order of confirmation was contested and as to the Ashland county lands, G. L. Darling, one of the co-tenants had filed his motion on the 30th day Of September 1908, To set aside the...
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