Smith v. Baumann

LLOYD, J.

By this action plaintiff sought to partition certain real estate. Partition was ordered, commissioners were appointed, and a writ of partition was issued to the sheriff. Return of this writ was made, showing that the commissioners, appointed by the court and named in the writ, found that the lands to be partitioned could not be divided without manifest injury, and that, so finding, they had appraised and returned the appraisement of the property in the manner provided by law.

Thereafter, on April 29, 1925, the defendants jointly filed their written objections to the report of the commissioners, the basis thereof being that it was possible to and that the commissioners should have made a physical division of the property. On the same day one of the defendants filed his election to take, at the appraised value, two of the lots in question. This election, together with the report of the commissioners as to said two lots, was approved and the sheriff, upon payment to him of the appraised value of said lots, was ordered to execute a deed of conveyance to the defendant so electing, which was done.

No evidence was offered, by either of the defendants, in support of the objections so made by them to the confirmation of the report, which, being so, it is impossible for this court to say whether or not a physical division, as claimed by the objecting defendants, could have been made by the commissioners. The court is not advised as to the character of the lots or their topography.

In absence of evidence to the contrary, it must be presumed that the commissioners acted in good faith, and with judgment and discretion. It is admitted that the three commissioners were all men of experience, one of them having been, at one time, Treasurer of Sandusky County, and each of the two others having been sheriff thereof.

(Richards and Williams, JJ., concur.)