Moore v. Willey
| Decision Date | 16 December 1905 |
| Citation | 91 S.W. 184,77 Ark. 317 |
| Parties | MOORE v. WILLEY |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Chancery Court; JOHN M. ELLIOTT, Chancellor reversed.
STATEMENT BY THE COURT.
G. F Willey and others brought a suit in equity in the chancery court of Arkansas County against Mary K. Moore, for the partition of certain lands in that county owned jointly by plaintiffs and defendant as tenants in common. The defendant filed no answer, and the court heard the case on the complaint and the deeds exhibited therewith, and found that two of the plaintiffs were each the owner of an undivided 11-30 interest in the land, another plaintiff the owner of 1-15 interest and that the defendant was the owner of an undivided 1-5 interest in the land; that the land was "not susceptible of division among the respective parties according to their respective interests therein without great prejudice to said owners." He therefore ordered, in substance, that the lands, for the purpose of division, be sold in bulk on a credit of three months, and that the sale be reported to the court for confirmation, and that the commissioner hold the proceeds subject to the further orders of the court.
The defendant appealed from the judgment.
Judgment reversed.
Taylor & Jones, for appellants.
1. The court erred in directing a sale of the land without first appointing commissioners as provided by law. Kirby's Digest, §§ 5778 to 5785 inclusive. Until report by them that partition can not be made without great prejudice to the owners, the court is without authority to order a sale. 49 Ark. 109.
Austin & Danaher, for appellees.
1. Appellant made no objection below, and did not ask for the appointment of commissioners. She cannot be heard to object now. Kirby's Digest, § 1233; 68 Ark. 75.
2. The complaint alleged that partition could not be made without great prejudice to the owners, and no answer was filed. The only question before the court is the sufficiency of the allegations of the complaint. 44 Ark. 60.
OPINIONRIDDICK, J., (after stating the facts.)
This is an appeal from a judgment ordering lands sold for the purpose of partition. It was alleged in the complaint that the lands could not be partitioned in kind without great prejudice to the owners thereof. The defendant filed no answer, and the chancellor, without referring the question to commissioners, found from the allegations in the complaint alone that partition could not be made in kind without great prejudice, and ordered a sale, and the question before us is whether the undenied allegation in the complaint is sufficient to justify the court in making the order for a sale of the premises. We may admit that the court had jurisdiction, and that the order was not void, but this is a direct attack by appeal and the question is, was there error in the proceeding?
The question is not free from doubt. As the code provides that material allegations in a complaint which are not denied by the answer are to be taken as true, and as no answer was filed in this case, we were first inclined to the opinion that the judgment of the chancellor was right.
But the procedure in proceedings for partition is regulated by statute in this State. An examination of the statute will show that the failure of the defendant to answer does not dispense with the necessity of further proof, for it provides that, if default be made, "the petitioner shall nevertheless make out his case by exhibiting to the court the evidences of his title." Kirby's Digest, § 5775. Again the statute provides that, if judgment for partition be rendered, no sale shall be made unless the commissioners appointed to make partition report that partition of the land cannot be made without great prejudice to the owners thereof. If they make such report, "the court may, if satisfied that the report is just and correct," order a sale of the premises for partition. Kirby's Digest, §§ 5779-5785.
Now while the procedure required by this statute must be followed by the law courts in partition proceedings before them--for in the absence of the statute such courts would have no jurisdiction to entertain such cases--with the courts of equity this is not altogether true, for it was long ago decided that these statutes do no take away the original jurisdiction of the chancery courts. The remedy...
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