Reckefus v. Lyon

• Decision Date: 14 December 1888
• Parties: RECKEFUS ET AL. v. LYON ET AL.
• Court: Maryland Court of Appeals

16 A. 233

69 Md. 589

RECKEFUS ET AL. v. LYON ET AL.

Court of Appeals of Maryland

December 14, 1888

Appeal from circuit court, Harford county, in equity.

Bill by William K. Reckefus and Alice M. Reckefus against George T Lyon and J. Thompson Friese for partition of the lands of Andrew Lyon, plaintiffs' ancestor. Bill dismissed, and plaintiffs appeal.

Argued before ALVEY, C.J., and MILLER, ROBINSON, STONE, YELLOTT MCSHERRY, and IRVING, JJ.

William Jones and L. Marshall Haines, for appellants.

William Marine, for appellees.

STONE J.

Andrew Lyon died seized as tenant in common with his brother George of certain real estate in the town of Havre de Grace, Md. He also died seized of an interest in certain other real estate lying in the same town, in which last-mentioned real estate his brother George and a certain J. Thompson Friese both had an interest. After the death of Andrew Lyon his heirs filed a bill for the partition or sale of all the said real estate and made George T. Lyon, the brother of Andrew, and J. Thompson Friese, defendants. The defendants answered, and among other things set up the defense that the bill was multifarious. That question was set down for hearing, and after argument the court decided that the bill was multifarious, but intimated in its opinion that it would hear whether the complainants desired to amend their bill. The complainants, however, refused to ask leave to amend their bill, and the court then passed a decree dismissing the bill. From this decree the complainants have appealed. The only question, therefore, presented to us upon this appeal is whether certain real estate held in common by Andrew and George T. Lyon, and also certain other real estate held in common by Andrew and George T. Lyon and a certain J. Thompson Frieze, could properly be divided or sold under one bill for partition. It is a question of pleading only. No authority has been shown that such has been the practice in this or any other state. But in Massachusetts, Vermont, Indiana, and Ohio it has been expressly decided that it could not properly be done. Kitchen v. Sheets, 1 Ind. 138; Brownell v. Bradley, 16 Vt. 105; Hunnewell v. Taylor, 3 Gray, 111; and Harman v. Kelley, 14 Ohio, 502; Freem. Co-Tenancy, § 437. All these authorities hold that it is a misjoinder to include in one proceeding for partition real estate owned jointly by A. and B., and also other real estate owned jointly by A.,...