Muller v. Muller

COOPER, P. J.

This appeal is from an interlocutory decree in partition by which a sale of the real estate described therein is ordered.

The trial court found: “That the real estate described in the complaint and hereinafter is so situated that actual partition thereof cannot be made without great prejudice to the plaintiffs and the defendants, the owners' of said real property.” The only question raised is as to the sufficiency of the evidence to sustain this finding. We have examined the evidence, and conclude that it is sufficient to support the finding. The land is a lot in the city and county of San Francisco, fronting ninety feet on Mission street and fifty-seven and one-half feet on Eleventh street. The plaintiffs own an undivided five-eighths interest, encumbered by various mortgages and liens, and the defendants own an undivided three-eighths interest therein. Several witnesses testified that the lot would sell much more readily and for a much better price if sold as a whole than if it were subdivided; and that if it were subdivided into two lots, the combined value of the two lots would not be as great as the value of the lot as a whole. The rule is that the land should be partitioned in kind unless such partition cannot be made without great prejudice to the owners. The courts favor a partition in kind where it is practicable, and this for the reason that the owners of real estate should not be deprived of their title thereto through a sale unless such sale is necessary to prevent great prejudice to the owners. In most cases the matter is one of discretion in the trial court. Considering the size of the lot, the number of owners, and the testimony of real estate experts, we cannot hold that the court abused its discretion.

The decree is affirmed.

Hall, J., and Kerrigan, J., concurred.