Gudgell v. Mead

• Citation: 8 Mo. 53
• Parties: GUDGELL AND AUSTIN v. MEAD AND OTHERS
• Decision Date: 31 July 1843
• Court: United States State Supreme Court of Missouri

8 Mo. 53

GUDGELL AND AUSTIN

v.MEAD AND OTHERS

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM LIVINGSTON CIRCUIT COURT.

SCOTT, J.

The appellees filed a bill in chancery against the appellants for a partition of chattels, consisting of an anvil, bellows, vice, hammers, &c. The appellants demurred to the bill, and their demurrer being overruled, they made no further answer; whereupon the court decreed a partition, and appointed commissioners to make it. From this decree, the appellants appealed to this court. The question presented by the record is, whether a partition of personal chattels can be decreed by a court of equity, between joint tenants, or tenants in common.

A writ of partition for joint tenants, or tenants in common, of real estate, did not lie at common law. This writ was given only to parceners, for, as the tenancy in co-parcenery was created by law, so the law gave the tenants a writ of partition. But, as joint tenants and tenants in common became such by their own act, the law provided no means by which they could obtain a separate interest in that which had become joint and undivided by their own consent. 1 Coke's Littleton, Thomas' ed. 806. The statutes of 31 and 32 Henry VIII. gave the writ of partition to joint tenants and tenants in common of real estate. The last of these statutes gave the writ to the joint owners of a lease for years. From this it would appear, that, by the common law, the joint owners of chattels had no process for compelling partition. It would be extremely difficult, in many casess, to make partition; many chattels are not susceptible of a division; of such, partition could only be made by allowing each owner to enjoy the chattels, for a given period, alternately. A power to sell is not incidental to the jurisdiction to make partition. If partition in kind cannot be made, a court of equity, without the authority of statute law, cannot decree a sale. Thompson v. Hardman, 6 Johns. Ch. R. 436. In the case of Tinnoo v. Ginkle, 1 Dessas. R. a sale was decreed where partition could not be made advantageously, and the land was unproductive to the children. In Coleman v. Hutchison, 3 Bibb, 216, the court said, no case had been found where a sale of the property has been adjudged or decreed, under the doctrine of partition at law, or in equity.

From the manner in which partitions of estates in England have been made, it would seem a court of chancery could not decree a sale; otherwise, modes of partitioning estates so inconvenient as have sometimes been made by her courts of chancery, would never have been submitted to. Take one for example: A commission of partition of a house having been executed, exceptions were taken, on the ground, that the commissioners had allotted to the plaintiff the whole stack of chimneys, all the fire-places, the only staircase in the house, and all the conveniences of the yard; the exceptions were overruled; the Chancellor saying, the did not know how to make a better partition between the parties. Turner v. Morgan, 8 Vesey; Manners v. Charlesworth, 7 Cond. Eng. Ch. R. 69. In 4...