Carnes v. White , 3 S.C.L. 458 ( 1804 )

By the court.

(All the judges present, except Lee, J. absent sick.)

The act of 1791, tor abolishing the rights of primogeniture, &o. authorizes the commissioners appointed to execute any writ of partition, to make a special return of the property, and the value thereof truly appraised, and to certify their opinion to the court, whether it will be most for the benefit of the parties io deliver over tq tne or more of the parties interested therein, the property which cannot be fairly divided, upon the payment of a sum of money, to be assessed by the commissioners, or to sell Ihe same at public auc. fcion : and ihe court shall consider and determine the same. And if it shall appear to the court, that it will be for the benefit of all parties interested iti the said estate, that the same should be vested in one person, or more persons, intitled to a portion of the same, oa the payment of a sum of money, they shall determine accordingly; .and the said person, or persons, on payment of the consideration money, shall be vested with the estate, &c. as the ancestor was vested : or the court may direct a sale. (1 Faust, 28.) The judge in the district court was mistaken, in supposing that the commissionsrs could not make the special return they have made,

Mplion granted.