Hardin v. Cogswell

• Decision Date: 30 April 1871
• Citation: 52 Tenn. 549
• Parties: Hardin v. Cogswell.
• Court: Tennessee Supreme Court

52 Tenn. 549

Hardin

v.Cogswell.

Supreme Court of Tennessee.

April Term, 1871.

FROM SHELBY.

Appeal from the First Chancery Court of Shelby County. R. J. MORGAN, Ch.

HUMES & POSTON for Complainant.

GANTT & MCDOWELL for Defendant.

NICHOLSON, C. J., delivered the opinion of the Court.

This is a proceeding by petition in Chancery for the partition of a lot in Memphis, fronting 300 feet on Union street. There are three tenants in common, each entitled to one-third of the lot. A decree for partition was made, and four commissioners selected by the parties and appointed by the Court. They met upon the premises, divided the lot into thirteen sub-divisions, estimated the value of each sub-division, partioned the thirteen lots into three shares, equalizing the shares by requiring one which contained five of the sub-divisions to pay to the other two about $2,200. The valuation of the entire lot was $51,490. After making the divisions and valuations, the commissioners, by lot, determined the shares to which each tenant was entitled. In this allotment Hardin drew the most valuable share.

The report of the commissioners was returned to Court and confirmed; but, at the same time, Hardin, one of the tenants in common, filed his petition to set aside the confirmation, and to be allowed to file exceptions to the report, which he had not done before the confirmation, because he was not apprised of the action of the Court until after the report was confirmed.

The Chancellor dismissed the petition, refused to allow exceptions to be filed, and re-affirmed the decree. From this ruling and decree, Hardin has appealed to this Court.

The proceeding was conducted in substantial conformity with the statutory provisions on the subject of partition. The only question in the case is, whether the report of the commissioners recites the facts required by sec. 3283 of the Code. That section is as follows:

“If the commissioners are satisfied that exact partition can not be made without material injury to the parties, or some one of them, they may make the partition as nearly equal as they can, and charge the larger shares with the sums necessary to equalize all the shares, and report the facts.”

The statute is based upon the assumption that each tenant has a vested interest in a definite portion of the joint property, and that each tenant is entitled, in the partition, to have his exact share in the property set apart and allotted in severalty. To avoid the impracticability of making partitions of lands into shares of exact equality, as to quantity and quality, provision was made for equalizing the shares, by looking to their respective values; but the statute is explicit, that this mode of equalization is not to be resorted to by the commissioners, except when they are satisfied that exact partition of the land can not be made without material injury to some or all of the parties; and to guard against imprudent partitions, the statute requires the facts upon which the commissioners act shall constitute part of their report.

It is correctly held by the Vice-Chancellor, in the case of Livingston v. Clarkson, 4 Edwds. Ch. R., 596, that “the report of commissioners is to be regarded in the light of a verdict of a jury rendered upon a trial at law; and it will be disturbed or interfered with by the Court only upon grounds similar to those on which a verdict would be set aside and a new trial granted.” But this must be understood in connection with our statute, which requires the commissioners not only to render a report or verdict, but to make the facts on which their report or verdict rests part of the same. Under our statute, therefore, it is more proper to say that...