Idema v. Comstock

• Decision Date: 19 February 1907
• Citation: 131 Wis. 16,110 N.W. 786
• Parties: IDEMA v. COMSTOCK.
• Court: Wisconsin Supreme Court

131 Wis. 16

110 N.W. 786

IDEMA

v.COMSTOCK.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Vilas County; W. C. Silverthorn, Judge.

Action by Henry Idema, as trustee, etc., against J. M. Comstock, for the partition of certain lands. From a decree directing a sale of the property, defendant appeals. Affirmed.

The action was brought for the partition of the northeast quarter of the southeast quarter and the southwest quarter of the southeast quarter of section number twenty (20), township number forty-four (44) north, of range number five (5) east, in Vilas county, Wisconsin, the plaintiff being the owner of an undivided two-thirds interest and the defendant J. M. Comstock, as appeared by the pleadings, being the owner of an undivided one-third interest. The only contest was as to whether the property could be partitioned between the parties without a sale of the same, plaintiff affirming that such sale was necessary and the said defendant that it was not. Such proceedings were duly had that an order for a partition of the property was made and the controversy as to whether a sale was necessary in order to make such partition was duly referred to George Hart, in compliance with section 3110, Rev. St. 1898. Such proceedings were duly had in execution of the reference that a report was made to the court that the premises were so situated and of such character that a partition thereof could not be made without great prejudice to the owners. The finding on the question of fact was excepted to by the defendant. The court confirmed the referee's decision and directed a sale of the premises, and defendant appealed.E. G. Comstock (J. H. Roemer, of counsel), for appellant.

A. W. Sanborn, for respondent.

MARSHALL, J. (after stating the facts).

The sole question here is this: Is the finding of the referee, that neither the premises nor any distinct portion thereof are so situated that a partition thereof can be made without great prejudice to the owners against the clear preponderance of the evidence?

The subject with which the referee had to deal was a pure matter of fact, therefore his decision, confirmed by the circuit court, must be given the same dignity on appeal, as is required by the established practice, as to any conclusion of fact made by a trial court.

True, as argued by counsel for appellant, the judicial rule of long standing is, that a sale should not be made for the purposes of partition unless that is necessary in order to protect the parties from serious loss. That rule was developed and established in equity. Pomeroy's Equity Jurisprudence (3d Ed.) §§ 1387, 1390. We need not investigate the decisions in that field because the equitable rule has been made a matter of written law providing for a sale for the purposes of partition only when a partition...