Packard v. King

• Decision Date: 01 April 1877
• Citation: 3 Colo. 211
• Parties: PACKARD v. KING.
• Court: Colorado Supreme Court

3 Colo. 211

PACKARD v. KING.

Supreme Court of Colorado

April, 1877

Appeal from District Court of Jefferson County.

THE bill, which was filed in this suit on the 9th day of November, 1872, alleges that Vevy Ann King, the appellee and complainant in the court below, in the month of January 1870, jointly with George F. Packard, the appellant purchased and received a conveyance of Clemency M. McIlvoy and Dennis D. McIlvoy, certain lands situate in Jefferson county, Colorado. That they were to pay $5,000 for the land and that at the time of the purchase the complainant paid $2,500, and that the complainant and Packard on the day following executed and delivered to McIlvoy a mortgage on the land purchased, to secure the balance of the purchase-money with interest, which was to be paid by January 1st, 1871. That on or about the 1st day of February, 1871, complainant paid to McIlvoy on the mortgage, the sum of $750, making in all the sum of $3,250; that Packard had not paid any part of the purchasemoney, and that there remained due to McIlvoy including interest, about $3,000; that the interest of complainant in the estate was liable for this balance of the purchase-money, together with interest due thereon; that since the purchase, Packard had enjoyed the use and occupation and rents and profits in a much larger degree than the complainant; and the upon an accounting, Packard would be found to be indebted to complainant in the sum of $1,000 as her share of the rents and profits, etc. The bill prays for an accounting as to the amounts stated to be due the complainant and to McIlvoy; and for partition of the premises, and that in default of payment by Packard of the amount that should be found due, that his interest be sold. After answer the cause was referred to the master to take proof. At the final hearing, a decree of partition was entered and also that Packard pay to the complainant, within sixty days from the adjournment of the court, the sum of $1,103 12/100 with interest and certain costs, and in default, that the master should proceed to sell as at sheriff's sale on execution, the portion of land set apart to Packard and out of the proceeds to pay costs, the amount decreed to be paid complainant, rendering the surplus to Packard, and execute a conveyance to the purchaser, etc. From this decree Packard appealed to this court-

Messrs. BROWNE & PUTNAM, for appellant.

Mr. JOHN W. BLACKBURN, for appellee.

ELBERT J.

This was a bill in chancery filed by the appellee against the appellant, for the partition of a common estate, and other relief in respect of matters growing out of the common tenancy. The jurisdiction of courts of equity in matters of partition is undoubted, and section 15 of the Partition Act, R. S. 493, expressly provides for its exercise according to the usual practice of such courts.

It was not, therefore, necessary, as is claimed by the appellant, that the bill should be under oath. Section 2 of said act, requiring the petition to be verified, is applicable only to proceedings under the statute.

The bill, we think, sufficiently sets forth the interest of the complainant in the property sought to the partitioned. It alleges the joint purchase of the estate by the complainant and the defendant Packard, and a conveyance to them, and under these allegations, the complainant, had not defendants' answer rendered it unnecessary, could have introduced the usual evidences of title. It is claimed however, that the bill prays for relief in respect to matters cognizable only in a court of law. It is a maxim of equity jurisprudence that 'where a court of equity has jurisdiction of a cause for any purpose it will retain it generally until complete justice is done.' Story's Eq. Jur., ss 74-76, and cases cited. In matters of partition it will not only decree the division of the estate, but will adjudicate other rights and equities of the parties growing immediately out of the common tenancy, and adjust its decree to the full exigency of the case. If rents or profits have been enjoyed by one tenant in...