Claxton v. Claxton , 56 Mich. 557 ( 1885 )

Coolet, C. J.

This is a bill in equity, filed on behalf of a minor, by his general guardian, for partition of lands. The lands are so situated that partition cannot be effected except through a sale, and this is opposed by the other joint owners. A net revenue of about nine per centum upon the value is now realized from the lands. The infant is owner of an undivided one-sixth.

The case has been heard on a stipulation as to the facts, and decree has been made as prayed. Evidently the court has assumed that partition was matter of right, which may be true enough if the facts are such as to warrant it. But when the rights of infants are in question, the facts cannot be established by admissions (Smith v. Smith 13 Mich. 258), and judgment must not pass as of course, but the facts must be proved, and the court, on an examination of them, must determine for itself what the interest of the infant demands; and, in a partition case, it is just as important to inquire into the-facts on evidence when the infant is complainant as when he is defendant.

In this case it seems almost certain that the interest of the infant is opposed to a partition if it must be effected by a sale. If therefore the facts which are stipulated were proved, the partition should be denied; and, as we cannot suppose a more favorable showing can be made, the decree will not only be reversed, but the bill dismissed.

The other Justices concurred.