Riney v. Riney ( 1866 )

Opinion oe the Oouet by

Judge Williams:

There were only seven slaves, whilst there were eight heirs; tbe slaves were of very unequal value, ranging from $125 to $500, according to tbe commissioner’s report, tbe interest of each heir was valued at $318.75, it was, therefore, impossible to divide them in kind, and, consequently, tbe County Court bad no jurisdiction by virtue of chapter 57, Rev. Stat. (2 Stanton), or of section 28, Civil Code.

On exceptions to the commissioner’s report, and motion to transfer the cause to the Circuit Court for a sale instead of division of the slaves, the County Court should have granted the same instead of overruling them and confirming the report, and on the appeal to the Circuit Court it erred in confirming the judgment of the County Court.

It was really a sale, under tbe pretext of a demurrer, and a sale in its most objectionable form, for tbe court fixed tbe price and designated who should purchase and who should sell.

We do not mean to say, that where there can be a division in kind approximating to each one’s interest, that small balance may not be arranged in money, for this would be a division, but where there are not as many slaves as heirs, and where some of tbe slaves are not of sufficient value to pay a single heir half of bis interest, and others are nearly double, a division in kind is impossible, and that any pretended division under such circumstances is really a sale and not division, and the County Court has no jurisdiction in such cases.

L. B. Thurman, for appellant. Cr. W. Oraddocic, for appellee.

Wherefore, the judgment of the Circuit Court is reversed, with directions to reverse the judgment of the County. Court and to remand the case to it, with directions to sustain the exceptions to the commissioner’s report, set the division of the slaves aside, and dismiss the proceedings as to the slaves, as they can now neither be sold nor divided. There is no complaint of the division of the land and it will íemain undisturbed by this reversal.