Underhill v. Underhill , 4 N.Y. St. Rep. 858 ( 1886 )

Barnard, P. J.

This case shows that a farm of land in Westchester county near Tuckahoe, consisting of 128 acres of land, is owned by six persons as tenants in common.

The farm is subject to two legacies of $4,000 each before the owners of the fee take anything. The proof accords with the finding of the judge, that no actual partition can be made without injury to the parties. The only claim made is that the farm may sometime be needed for villa sites, for which at present there is no demand. The parties are not bound to await that period. It is now a farm with proper farm buildings for a farm as an entirety. It will not sell for more in all probability in small parcels than it will as an entirety. The question whether the sale shall be in parcels is one usually left to the referee, subject to the approval of the court, and this is an entirely different question from the question of sale or actual partition. The parties made two issues—one as to any sale, and the other as to actual partition instead of sale if partition were to be ordered. Partitition was properly ordered, because the power of sale in the executors of Caleb F. Underhill would probably need the aid of the court as to the time it would properly be exercised. A sale in this action will give a good title. Considering the nature and use of the property and all the surrounding circumstances, it was proper to direct a sale of the lauds as an entirety.

The judgment should, therefore, be affirmed, with costs. Pratt, J., concurs, Dykman, J., not sitting.