Davis v. Davis
| Decision Date | 30 June 1843 |
| Citation | 2 Ired.Eq. 607,37 N.C. 607 |
| Parties | ROBERT B. DAVIS AND OTHERS v. SAMPLE DAVIS AND OTHERS. |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
Where, on a petition for a sale of land for a partition because it could not be actually divided, one of the defendants, who had purchased several shares, alleged that the partition could be made without prejudice to the interests of the co-tenants, and the cause was set for hearing upon the petition and answer; Held that, the answer being thus taken to be true, the Court could not decree a sale, notwithstanding it appeared that by an actual partition, neither of the co-tenants would get more than twelve acres of land. The Court cannot determine, as it is not stated, what would be the value of each lot, when divided off, nor to what purposes, whether agricultural or otherwise, it might be applied.
Prima facie, each party is entitled to actual partition, and it is incumbent on him, who asks for a sale, to shew that his advantage will be promoted by it, and that no loss will be worked to any other party.
This was an appeal from the decree of his Honor Judge DICK at the Spring Term 1843, of Mecklenburg Court of Equity, dismissing the petition of the plaintiffs. The facts appear in the opinion delivered by the Judge in this Court.
Alexander and Osborne for the plaintiffs .
Hoke for the defendant .
John Davis died intestate, seized in fee of a tract of land situated in Mecklenburg county, and containing ninety-nine acres. He left seven children and two grand-children, who were the issue of a deceased daughter, to whom the land descended, as tenants in common. One of the sons, Robert B. Davis, and the two grand-children, filed a petition in the Court of Equity, against the other six children, and therein alleged, that the land could not be divided without prejudice to the parties interested, and thereupon prayed that a sale should be decreed upon proper terms, for the purposes of partition. The defendants answered, that one of them, Semple Davis, had purchased from the other five of them, their several shares, so as, with his own original share, to entitle him to six shares of the land, out of eight. And he says further, that he ownes other land adjoining this tract, which would be rendered of much less value to him, if he did not likewise own his parts of the land descended from his father, and he states, that partition might be made by allotting to the petitioners their two shares, together,...
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Brown v. Boger, 473
...for a sale to show, that his interest will be promoted by it, and that no loss will be worked by it to any other party. Davis v. Davis, 2 Ire.Eq. 607 (37 N.C. 607).' Further: 'In cases of partition, a court of equity does not act merely in a ministerial character, but it administers its rel......
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