Boggs v. Chambers , 9 Ga. 1 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

The case made by the complainant’s bill is for a partition and account. The- complainant alleges, that he is a tenant in common with the other defendants, of a lot of land upon which is a valuable gold mine; that the defendants have entered upon the lot and worked the gold mine, and extracted therefrom a large amount of gold, for which they refuse to account with him. The complainant also alleges, that the defendants have fraudulently proceeded to have the said lot of land partitioned and divided between themselves and the complainant, without giving him any notice thereof, and setting apart a portion of the lot to him, upon which defendants knew there was no gold to b© found, and causing all the gold-mining interest thereon to be divided between themselves. The prayer of the bill is, that a partition of the land may be decreed between the complainant and defendants, the alleged fraudulent partition of the land set aside, and that the defendants be decreed to account for the gold which they have extracted from it.

[1.] As a general proposition, it may be stated, that Courts of Equity have concurrent jurisdiction with Courts of Law, in all cases of partition. 1 Story’s Equity, 599, §646, 610, §658. But in this State, if it shall appeal- that the party applying to a Court of Equity has as ample and adequate remedy in a Court of Law, under the provisions of our Statute, as he would have in a Court of Equity, the latter Court will not assume jurisdiction to award a partition. Does the case made by the complainant show, that his remedy in a Court of Law would be as ample and adequate to afford him relief, as in a Court of Equity P We think not, for the reason that the defendants have placed an obstacle in his way, by having the alleged fraudulent partition made of the land, and for the further reason, that they have proceeded to extract therefrom a large amount of gold, which they have appropriated to their own use. The complainant is entitled to a discovery from them of the amount of gold which they have obtained from the land, and a decree for his proportionable share, as consequent upon that discovery. Where one tenant in common has been in the exclusive enjoyment of the rents and profits, on a bill for partition and account, the latter will also be decreed. 1 Story’s Equity, 608, §655.

By maintaining the jurisdiction of the Court in this case, the complainant will not only be entitled to the aid of the Court to remove the fraudulent obstacles created by the defendants, in having a partition of the land, but will also have the assistance of the Court to compel a discovery of the rents and profits of the land, and a decree therefor, as well as a decree for partition, without resorting to another suit, to accomplish that object in the Common Law Court. This bill is not multifarious, according to the ruling of this Court, in Butler and others vs. Durham, 2 Kelly, 413.

Let the judgment of the Court below be reversed.