Shearer v. Shearer
| Decision Date | 26 October 1904 |
| Citation | 101 N.W. 175,125 Iowa 394 |
| Parties | MARION S. SHEARER v. FREDERICK WHITEHAM SHEARER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jefferson District Court.--HON. ROBERT SLOAN, Judge,
THE plaintiff is the widow and the defendant the son of Frederick J. Shearer, who died intestate, seised of seventy-four and one-half acres of land. This is a suit in equity, alleging that the plaintiff owns the undivided one-third and the defendant the undivided two-thirds of said land, asking the confirmation of said shares and the partition of the land by metes and bounds. The respective shares were confirmed, and referees were appointed under the provisions of section 4253 of the Code to make partition. This they did, allotting the plaintiff twenty-one acres of land, upon which were situated the buildings and other improvements on the tract, and to the defendant the remaining fifty-three and one-half acres. Objection was made to the report by the defendant on the ground that the land was not readily divisible into shares and because the allotment was unjust and inequitable. Issue was joined thereon, evidence was heard, and the entire question was tried by the district court. Judgment was entered modifying the report to the extent of reducing the allotment to the plaintiff to nineteen acres, and, as thus modified, it was confirmed. Both parties appeal.
Affirmed.
I. D Jones and Leggett & McKemey, for appellant.
E. F Simmons, for appellee.
There is some conflict in the testimony as to whether the land can be partitioned in kind without injury to the defendant's interest therein, but we are satisfied from a careful reading of the entire evidence that he will suffer no disadvantage by such a partition. It fairly appears that the land allotted to him is of a better quality and of a much smoother surface than that allotted to the plaintiff, and the mere fact that there is no spot thereon which suits him for the location of a house should not compel a sale of the entire tract. In a partition proceeding the shares are to be made as nearly as possible of equal value under ordinary conditions. Such would be the mandate of equity were it not required by the statute. In this case, as in almost every one involving the valuation of property, there is a difference of opinion among the witnesses as to the respective value of the allotments. We think, however, that the trial court...
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