Murphy v. Murphy ( 1827 )

M’Girk, C. J.,

delivered the opinion of the Court.

The case appears to he, that in 1822, David Murphy and Jesse Evans, petitioned the Circuit Court for a partition of certain land, the' former property of Sarah Murphy. The Court made an order to that effect, and appointed Commissioners, who made their report, assigning to each claimant his lot of land. The Court accepted this report, but amended it, by assigning some of the lots to different persons than those pointed out by the Commissioners; and also, the Court cast lots, between some of the claimants, to determine which lots they should have. This course we conceive to be illegal. When the Commissioners had laid out the lots, according to quantity and value, they might have taken any such mode as this, to determine which lot should belong to each, if it became necessary for them to do so; but the Court cannot do this, for the simple reason, that it is not their business to make the partition, which they have, to a considerable degree, done in this case. If the Court found the partition was unequal, unlawful, or contrary to their order, they should have sent it back to the Commissioners, with such instructions as might meet the justice of the case.

The decree of the Circuit Court is reversed, with costs, and the cause is remanded for further proceedings.