2 of equity, in decreeing a partition, may properly decree the purchase money so paid to be a lien on the premises."I So where, on the joint purchase of the common lands, one of the cotenants had paid more than his proportion of the price, he was held to be entitled to be indemnified, for the excess, out of the proceeds of the sale in partition. A tenant in common who has removed an incumbrance from the common property is entitled to contribution from his cotenants. To secure such contribution, a court of equity, acting in a suit for partition, in favor of the cotenant removing the incumbrance, will enforce an equitable lien of the same character with that which he has removed. In one case, the commissioners awarded damages for waste. Their report was excepted to, on the ground that the remedy for waste was at law; but the Court said: "There is hardly any question in relation to property which this Court may not determine incidentally, for the purpose of doing complete justice, and preventing multiplicity of litigation." In decreeing partition of slaves, the Court required the plaintiff to reimburse the defendant for expenses incurred in a suit to recover the slaves from a third person.5 2 513. Compelling Conveyance. When the title of a cotenant is equitable merely, and he is entitled to a conveyance of the legal title, he may, by proper pleadings, assert his rights and obtain a decree of the Court "compelling those in whom the legal title rests to convey according to the partition awarded." But where the sole purpose of the bill is to procure a partition, it will not be granted on the ground that the plaintiff is entitled to a conveyance. He must first, in the same or in an independent suit, obtain a decree declaring his right to the conveyance." Campbell v. Campbell, 3 Stock. Ch. 276. Warfield v. Banks, 11 Gill & J. 98. Titsworth v. Stout, 49 III. 78. Backler v. Farrow, 2 Hill's Ch. 111. 5 M Meekin v. Brummet, 2 Hill's Ch. 643. 6 Overton's Heirs v. Woolfolk, 6 Dana, 376; Christian's Devisee v. Christian, 6 Munf. 534; Hunter v. Brown, 7 B. Monr. 283. 7 Williams v. Wiggand, 53 Ill. 233. C. & P.-40 8 514. An injunction may, in some instances,' be granted on the application of one cotenant to restrain another from committing or contiuuing some act destructive to the common estate. This relief may be obtained in a suit for partition as well as in an independent proceeding. 515. Enjoining Partition at Law.-In proceeding at law for a partition, no notice was taken of any equitable rights or titles. The land was divided into moieties, as directed by the judgment of the Court; and, in making such division, no attention was paid to the equitable rights of either of the cotenants, arising from the erection of improvements, or from any other cause." When a court of law by proceeding with a partition is about to sacrifice the equitable rights of some of the cotenants, a court of equity will enjoin the proceedings at law and award an equitable partition. “A court of equity will not interfere, unless such interference becomes necessary to protect some party thereto from fraud or wrong, or to secure him some clear right which the law tribunal, from the manner of proceeding before it, cannot secure. For such purpose, courts of equity in exercising one of their principal functions, which is to remedy injustice occasioned by the strict rules of the law and the manner of proceeding in courts of law, will interfere to prevent a failure of justice and loss of rights." A court of equity will therefore interfere where one of the cotenants has, in good faith, placed valuable improvements on the property. Where by statute Chancery has power to decree a sale of lands, and no such authority exists at law, a proceeding at law for partition may be enjoined, if it appears that the partition at law will result in great injury to the parties in interest, and that a sale of the property will be much more beneficial to them than a division thereof." See secs. 323-4. Baily v. Hobson, 22 L. T. R. 594; S. C. 2 Alb. L. J. 74. A receiver may also be appointed pending a partition. Low v. Holmes, 17 N. J. Eq. 150; Rutherford v. Jones, 14 Geo. 526. Greenup v. Sewell, 18 Ill. 54; Thornton v. York Bank, 45 Me. 164; Tilton v. Palmer, 31 Me. 487; Liscomb v. Root, 8 Pick. 377; Baldwin v. Breed, 16 Conn. 65; Marshall v. Crebore, 13 Met. 468; Bull v. Nichols, 15 Vt. 335. Hall v. Piddock, 21 N. J. Eq. 312. 5 Gash v. Ledbetter, 6 Ired. Eq. 185. CHAPTER XXVI. THE JUDGMENTS, AND THE PROCEEDINGS THEREUNDER. The First Judgment, § 516. The First Judgment determines the Moieties, § 517. The First Judgment, Special Directions in, § 518. The First Judgment is not Final, § 519. Issuing the Writ, § 520. Issuing the Commission in Chancery, § 521. The Commissioners and their Duties, § 522. Report of the Commissioners, § 523. Vacancies in the Commissioners, § 524. Vacating Commissioner's Report for Error in Judgment, § 525. 516. The First Judgment.—Whether the proceeding for partition was prosecuted at law or in equity, it was first necessary to decide whether the parties were cotenants and entitled to partition. This question being resolved in the affirmative, it was next necessary to determine the respective moieties of each of the parties. The result of the decision of these two questions was the judgment quod partitio fiat. This was the first or interlocutory judgment in partition. It directed that partition be made between the parties, and commanded the sheriff to go to the premises, and in the presence of the parties, if they be willing to be present, after being first forewarned, "by the oath of good and lawful men of his county, respect being had to the true value of the said tenements, with the appurtenances, he cause to be divided" into certain moieties which the judgment proceeded to specify, and that he deliver one moiety to A and another to B, etc.1 In Chancery, the deeree for partition ordered: 13 Chitty Pl. 1392; Booth on Real Actions, 244-5. 1st, that a partition be made between the plaintiffs and defendants, in certain moieties which it specified; 2d, that a commission or commissions issue to certain persons to be therein named; 3d, that the commissioners do make a partition, [here specifying the manner in which it shall be made]; 4th, that all writings, surveys, muniments of title, etc., be produced before the commissioners; 5th, that the commissioners examine witnesses, as they may think fit; 6th, that after such partition has been made, that the parties execute conveyances to each other respectively. The decree, in addition to these directions, usually contained another in reference to the title deeds, and one in regard to costs. 517. First Judgment must determine the Moieties.— Whether the proceeding was at law or in equity, the province of the Court was to determine between whom, and in what proportions, the division should be made. In no case could the commission determine title, or prosecute any inquiries in regard thereto.2 In one case in equity, where it was conceded that the parties were cotenants and entitled to partition, but their respective moieties were uncertain, the Master of the Rolls said: "I shall take a little time to consider what is a proper decree in this case. At present, I am strongly inclined not to decree an immediate partition, upon the grounds that have been stated; but I wish to consider whether, as incidental to the demand for partition, the Court would not put into a train of inquiry what are the proportions in which they are interested in these lands, in order to lay a foundation for partition afterwards, that previous inquiry to be before the Master; whether the commission ought not, as the writ always does, to state the proportion in which the partition is to be made." Subsequently, he announced the result of his consideration as follows: "There are two cases in which the Court referred it to the Master to ascertain the interests of the parties, and afterwards directed a commission to issue: Calmady v. Calmady,3 and Duncan v. Howell. The uncertainty of the shares is not a ground for 'Seaton's Forms, 184; Danl. Ch. Pr. 4th ed. 2254. 2 Ham v. Ham, 39 Me. 218. 32 Ves. Jr. 568, 1 definitely refusing a partition: it is for refusing it at present. It cannot be referred to the commissioners to ascertain the interests. This must be done, as in those cases by the Court, through the medium of the Master. In one of the cases, the form of the inquiry was, what undivided shares the several parties were entitled to, and for what estates and interests therein respectively."1 518. Special Directions.-The respective duties of the Court and of its commissioners in making a partition are not very clearly defined. Although the first or interlocutory decree determines the moieties of the respective parties, and thereby furnishes the basis upon which the commissioners are to proceed, there are many things, in addition to the moieties of the parties, to be considered in making an equitable partition. Among these are the granting of owelty, the setting aside of improved lands to the tenant who improved them, and the allotment of wasted lands to the tenant who wasted them. No doubt the Court might insert in its interlocutory decree such special directions to the commissioners as it thought necessary to insure an equitable partition. But whether it was usual to insert such directions in the first decree, or to leave the whole matter to the judgment of the commissioners in the first instance, and to apply for the modification or rejection of their report when it proved unsatisfactory, are subjects of which the authorities coming within our view have failed to enlighten us. 519. First Judgment is not Final.-Neither the interlocutory judgment at law nor the first decree in Chancery is final: it cannot, therefore, be corrected by a direct appeal.' The parties must wait until the entry of the final judgment or decree. In Texas, a different rule prevails. A decree which determines all the issues made by the pleadings, and directs partition to be made in accordance with such deter Agar v. Fairfax, 17 Ves. 542; Phelps v. Green, 3 Johns. Ch. 304; Ledbetter v. Gash, 8 Ired. 463. 2 Ivory v. Delare, 26 Mis. 505; Beebe v. Griffing, 6 N. Y. 465; Clester v. Gibson, 15 Ind. 10; Griffin v. Griffin, 10 Ind. 170; Cook v. Knickerbocker, 11 Ind. 230; Hunter v. Miller, 11 Ind. 356; Pipkin v. Allen, 29 Mo. 229; Durham v. Durham, 34 Mo. 447; Medford v. Harrell, 3 Hawks, 41. |