Phillips v. Dulany

• Decision Date: 13 March 1913
• Citation: 77 S.E. 449,114 Va. 681
• Parties: PHILLIPS et al. v. DULANY et al.
• Court: Virginia Supreme Court

77 S.E. 449

114 Va. 681

PHILLIPS et al.

v.DULANY et al.

Supreme Court of Appeals of Virginia.

March 13, 1913.

1. Partition (§ 26^*)—Tenancy in Common (§ 49*)—Lease.

A lease by part of the tenants in common of any part of the joint property will not bind the others or prevent partition.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 68-71, 75; Dec. Dig. § 26;* Tenancy in Common, Cent. Dig. § 123; Dec. Dig. § 49.*]

2. Partition (§ 79*)—Division of Lands-Commissioners.

Code 1904, § 2502, relating to partition, places no restrictions on courts of equity in the matter of procedure, and the court may call to its assistance a master in chancery to report on the advisability of dividing or selling the lands, and to produce a plat dividing such lands which the court may, in its discretion, affirm; no board of commissioners being necessary.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 224, 225; Dec. Dig. § 79.*]

3. Partition (§ 94*)—Assigning SHares Together—Statute.

An objection by defendants to a partition that the commissioner laid off their shares together, without their consent, is without merit, where they refused the court's offer to have the allotment subdivided; Code 1904, § 2563, providing that the shares of two or more tenants, who so elect, may be laid off together, not forbidding the assignment of the shares together.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 287-299, 305; Dec. Dig. § 94.*]

4. Partition (§ 94*)—Report of Commissioner—Objections.

Where part of tenants in common undertake to lease a portion of the joint property, and the other tenants petition for partition, the former cannot object that the report and plat of the commissioner does not show of whom the lessees will be tenants, where they declined to avail themselves of the court's offer to refer the matter to a commissioner to locate the lines of the leases.

[Ed. Note.—For other cases, see Partition, Cent Dig. §§ 287-299, 305; Dec. Dig. § 94.*]

Appeal from Circuit Court, Alexandria County.

Bill by H. R. Dulany and others against R. H. Phillips and another. Decree for plaintiffs, and defendants appeal. Affirmed.

C. E. Nicol, of Alexandria, for appellants.

Jno. S. Barbour, of Fairfax, for appellees.

WHITTLE, J. The appellees, H. R. Dulany, Frank Lyon, and R. W. Moore, filed their bill under Va. Code 1904, c. 114, against the appellant R. H. Phillips and R. A. Phillips (who died since the final decree) to compel partition of 5 3/4 acres of land in Alexandria county, Va., owned by the parties as tenants in common. The appellees owned one-third of the land, and the Phillipses two-thirds.

The first assignment of error is to the court's action in overruling the demurrer to the bill.

In addition to the usual allegations, the bill set forth that certain lessees claimed possession of portions of the land under recorded leases from R. A. Phillips and R. H. Phillips; and the ground of demurrer is that the bill does not allege that the land could be partitioned in kind "so as to respond to the rights of the said lessees in said land under section 2568 of the Code."

Section 2568 provides: "Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold on the same terms on which by his lease he held it before the partition."

The above section applies when the lessee claims under a valid lease against all of the joint owners, and not to a case like the present where only two of the tenants in common undertook to lease a particular portion of the joint property. Such lease is not binding upon the other tenants in common. Robin-ett v. Preston's Heirs, 2 Rob. (41 Va.) 273; Cox v. McMullin, 14 Grat. (55 Va.) 82.

The latter case lays down the principle: "Although a party holding in common with others can do nothing to impair or vary in the slightest degree the rights of his cotenants, yet if he execute a deed for a specific portion of the common subject, or make a contract in regard to it, and upon partition such portion falls in severalty to the party so making the deed or contract, he will be bound by his act."

In Stark v. Barrett, 15 Cal. 370, Judge Field, in discussing the effect of such conveyance or contract upon a cotenant, cites with approval the Virginia decisions, and says: "The partition may be directed without reference to the grantees under the conveyance further than to make them parties to the proceedings in partition in connection with their original grantor, as representing his interest as original cotenant. Their claim to control or affect the partition by reason of their respective conveyances may be entirely disregarded. The grantees are to be considered as taking their conveyances subject to this condition."

If there were merit in the point, which we think there is not, it is sufficient to add that the lessees, the parties affected, are not complaining. The demurrer was properly overruled.

The next assignment of error that we shall notice, and the one seemingly most relied on, involves a question of procedure. The court directed one of its commissioners in chancery, among other matters, to ascertain and report "whether or not the tract of land in the bill and proceedings mentioned iscapable of partition in kind, among those entitled thereto, and that, if so, he report a partition thereof which will best subserve the interests of those entitled; regard being had to quality as well as quantity, laying off the interests of the complainants in a single lot, if that be practicable without undue prejudice to the other owners."

Upon this inquiry the commissioner reported that the land was susceptible of convenient partition in kind, and that the shares of the complainants could be laid off together, without prejudice to the other owners. He also filed with his report a plat showing a partition of the land among the owners, which he says he "is informed was agreed to by the parties in interest; and, in the opinion of your commissioner, it is a fair partition. The interest which was agreed to be accepted by the complainants is, in the opinion of the commissioner, the least valuable on account of having the least area; but they have agreed to accept this property— that is, parcels 3 and 4—and your commissioner recommends that said parcels 3 and 4 be decreed to complainants, and that parcels 1 and 2 be decreed to the defendants R. A. and R. H. Phillips." Phillips, however, denies that he agreed to the partition.

The more usual practice in suits for partition is for the court to appoint five commissioners (any three of whom may act) to make partition. These commissioners are sworn and may view the land to be partitioned, call to their aid the services of a surveyor, and examine witnesses. They make their report in writing, and generally should...