Griffin v. Tomlinson

• Decision Date: 12 September 1930
• Citation: 155 Va. 150
• Parties: AMANDA GRIFFIN v. FLOYD TOMLINSON, ET ALS.
• Court: Virginia Supreme Court

Page 150

155 Va. 150

AMANDA GRIFFIN v. FLOYD TOMLINSON, ET ALS.

Supreme Court of Virginia, Staunton.

September 12, 1930.

Absent, Prentis, C.J., and Holt, J.

1. PARTITION — Right to Seek the Aid of Court. — The right of tenants in common, joint tenants and co-parceners to seek the aid of a court of equity to compel a partition of land is conferred by section 5279 of the Code of 1919.

2. PARTITION — How Proceeding Instituted. — The proceeding for a partition may be instituted by petition or bill, but the usual method of procedure is by bill in equity.

3. PARTITION — Usual Practice — Appointment of Commissioners. — The usual practice in suits for partition is for the court to appoint commissioners who, after being duly sworn, may view the land to be partitioned, employ a competent surveyor to make a survey thereof, and examine witnesses as to value, ways and any other matters pertaining to an equitable partition.

4. PARTITION — Report of Commissioners — Map or Plat. — Commissioners appointed in partition proceedings should make their report, in writing, to the court, generally filing therewith a survey and plat clearly designating the metes and bounds of the several allotments.

5. PARTITION — Commissioners — Intelligence and Character — Report. — While the court is the final arbiter in matters of partition, the commissioners should be selected with due regard to their intelligence and character, as the same principles which govern the award of arbitrators and the verdict of a jury are applicable to some extent to the report of the commissioners.

6. PARTITION — Report of Commissioners — Weight to which Report is Entitled. — Due to the fact that the commissioners are, for the time being, officers of the court, great reliance is placed on their discretion and acts, and full weight should be given their report, if it comes to the court without the taint of partiality or undue influence.

7. PARTITION — Report of Commissioners — Weight to which Report is Entitled — Commissioners Influenced by the Litigants. — But when it is made to appear by exceptions to the report, or by affidavits made a part of the record, that their conduct has been possibly influenced by the acts of the litigants, however innocently exerted, then it is the duty of the court to reject the report and either appoint other commissioners to make partition or proceed in some other manner warranted by law.

8. EMINENT DOMAIN — Partition — Verdict — Entertainment by Litigants of Jurors or Commissioners — Case at Bar. — In the instant case, a partition suit, the commissioners were entertained by the appellees and the confirmation of their report was set aside for that reason. When jurors or commissioners in condemnation proceedings or commissioners in partition proceedings are entertained or shown undue courtesies by those interested in the litigation, their agents or attorneys, the verdict of the jurors or the report of the commissioners in condemnation or partition proceedings should be set aside.

9. PARTITION — Allotment — Ingress and Egress to a Public Road — Case at Bar. — In the instant case, a suit for partition, the trial court erred in refusing to sustain an exception to the commissioners' report grounded on the failure of the commissioners to provide by specific designation a means of ingress and egress to and from the lands assigned to appellant to a public road.

10. PARTITION — Ingress and Egress. — In the partition of land, ways are an essential element to its use and enjoyment.

Appeal from a decree of the Circuit Court of Scott county. Decree for complainants. Named defendant appeals.

The opinion states the case.

Will H. Nickels, for the appellant.

S. H. Bond, for the appellees.

CAMPBELL, J., delivered the opinion of the court.

Appellees, who are heirs at law of James Tomlinson, deceased, instituted this suit against appellant and the remaining heirs, for the partition of certain lands containing approximately three hundred acres, of which the decedent died seized and possessed. Appellant filed her answer to the bill of complaint, and by decree entered on the 31st day of July, 1929, it was adjudged that the lands of James Tomlinson, deceased, be "partitioned into nine parts as nearly equal as possible, having reference to quantity and quality, value, ways and water." Three commissioners were appointed to make partition of said lands, and on December 18, 1929, they filed a report in which it appears that appellant was assigned seventy-six and one-ninth acres of land without any improvements thereon. Appellant duly filed nine exceptions to the report of the commissioners. In support of the exceptions appellant filed sundry affidavits.

The grounds alleged against a confirmation of the report are that the lands assigned appellant lie remote from a public road; that the commissioners failed to provide a right of way for appellant to the public road; that the land assigned is devoid of building and improvements; that the land is remote from other lands owned by appellant; that appellant had expended upon the "Home Place" where she was residing at the time partition was decreed, large sums of money which were not taken into consideration by the commissioners; that appellant was entitled to have her share of land assigned her out of the home tract, provided same could be equitably done; that the land assigned her...