Lang v. Constance

• Decision Date: 17 June 1898
• Citation: 46 S.W. 693
• Parties: LANG et al. v. CONSTANCE et al. [1]
• Court: Kentucky Court of Appeals

46 S.W. 693

LANG et al. v. CONSTANCE et al. ^[1]

Court of Appeals of Kentucky.

June 17, 1898

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

Action by George W. Constance and wife against Annie Lang and others for a division of land. Judgment for plaintiffs, and defendants appeal. Reversed as to judgment for attorneys' fees.

A. A Stoll and Phelps & Thum, for appellants.

Barnett Miller & Barnett, for appellees.

WHITE J.

This action was brought in the Jefferson circuit court by appellees, Constance and wife, together with appellants Lang and wife, as plaintiffs, against certain others, infant heirs, for a partition of certain real estate in Jefferson county, which they owned jointly. After the action had begun appellants Lang and wife, upon their motion, were stricken from the list of plaintiffs, and were made defendants. The court appointed commissioners to divide the land among the five joint owners, which they did, and reported to court their division made, with plat of same. This report shows that the land contained 42.8 acres, and it lies within a mile of the limits of the city of Louisville, and contains a dwelling house. Lot No. 1 contains 10.1 acres, and was allotted to Lotta Schweitzer, one of the infants. Lot No. 2 contains 10.66 acres, and is allotted to John Schweitzer, an infant. Lot No. 3 contains 8.4 acres, and was allotted to appellant Lang. Lot No. 4 contains 6.25 acres, including the dwelling, and was allotted to appellee Constance. Lot No. 5 contains 7 acres, and was allotted to Lydia Schweitzer. After the report had been filed, defendants filed an answer alleging that the land was not susceptible of an equal division at all, on account of its topography, and also filed exceptions to the report of division. John Schweitzer also filed exceptions to the report, because of alleged inequality in the division. On the issue as to the report being equal proof was taken. It is shown by the three commissioners, two of whom are real-estate dealers in Louisville, and the other a surveyor, as well as by another experienced real-estate dealer, that the division as made and reported is equal and fair; that all five shares are of equal value as near as may be had; and that, in their opinion, the land would not sell for as much in one body as in the five pieces. On the other hand, appellant proves that the division is unequal and unfair. Callahan, a witness for appellant, gives his opinion as to the values of the lots, as follows: No. 1, $2,500; No. 2, $2,000; No. 3, $1,600; No. 4, $1,500; No. 5, $1,200. Fred Lang, a brother of appellant John Lang, and who resides on the place, and has for several years, entirely reverses the order of values: No. 5, $4,200; No. 4, $3,125; No. 3, $2,000; No. 2, $1,000; No. 1, $500. Hooper, a stepfather of all these heirs, and who has resided on the land, places these values: No. 1, $1,000; No. 2, $900; No. 3, $1,200; No. 4, $3,744; and No. 5, $700. Witness Boes values Nos. 2 and 3 at $25 each; No. 4, $2,500; No. 5, $300; and No. 1 at $1,000. It is utterly impossible to reconcile this testimony of appellant. The witnesses vary from $2 to $200 per acre on a single share, and from $50 to $600 on another share. From the testimony we are of opinion that the division is as fair and equitable as can be made. The commissioners are fair men, and know the value of real estate in that vicinity, and are entirely disinterested, and they say unacquainted with the parties, and we are inclined to accept their action, and affirm the judgment of the chancellor confirming their report of division.

The circuit court adjudged that the costs of the division should be paid by all parties equally, and that the costs of the exceptions be paid by appellants; also adjudged that attorneys for appellees be...