Citation Numbers： 16 Wyo. 1, 90 P. 378, 1907 Wyo. LEXIS 34
Judges： Beard, Below, Brard, Craig, Dis, Hearing, Hon, Place, Potter, Presided, Scott, Third, Trict
Filed Date： 6/10/1907
Status： Precedential
Modified Date： 10/19/2024
This is an action for partition, and is in this court on error. It was brought in the district court in Laramie County by Mary T. Leiter, Joseph Leiter, and others, trustees and devisees under the last will and testament of Levi Z. Leiter, deceased. The defendants were Marshall Field, trustee; James H. Pratt, and Mary T. Leiter and Joseph Leiter, executors of the last will and testament of Levi Z. Leiter, deceased.
The amended petition upon which the cause was heard alleges in substance that on June 15, 1903, and for many years prior thereto Levi Z. Leiter and James H. Pratt were tenants in common, seized and possessed of the title in fee simple of the lands, tenements and hereditaments therein described; that the said Leiter on that date and at the time of his death owned an undivided twenty-nine hundred and fourteen four-thousandths part of said lands, tenements and hereditaments, and that the said Pratt owned an undivided ten hundred and eighty-six four-thousandths part thereof; that on the date above mentioned the said Pratt conveyed by deed to the defendant Marshall Field all his said undivided part in trust, to pay the income of said property to
The defendants, Marshall Field, trustee, and James H. Pratt, filed their separate answer to said petition, the material portion thereof being as follows:
“They admit that the rights and interests of the several parties, plaintiffs and defendants, named in the said amended petition, in and to the several pieces or parcels of land ’ mentioned and described in said amended petition, are truly set forth and stated in said amended petition; and these defendants submit to such decree as this court may make in the premises, either for a partition of the said several pieces or parcels of land, or for a sale thereof, or of such parts thereof as shall be found incapable of partition without material injury to the parties interested therein,*22 and these defendants pray that they may have such other and further relief as may be just and equitable.”
The defendants, Mary T. Leiter and Joseph Leiter, as executors, filed their separate answer admitting that the rights and interests of the several parties, plaintiffs and defendants, named in the petition are truly set forth and stated therein, and praying that their rights in the premises as admitted in the petition may be preserved in any decree that may be entered.
Upon the issues thus framed an order of partition was entered by the court which recited that the cause came on to be heard upon the petition, the answer of the defendants Field and Pratt, and the answer of the defendants Mary T. and Joseph Leiter, as executors ,and that it appeared to the satisfaction of the court that each and all of said defendants had been duly notified of the bringing, pendency and demand of said action as required by law, and in their answers had consented to the partition of the premises described in the petition as therein prayed for, and that plaintiffs had a legal right and estate in said premises; and it was ordered, all parties consenting thereto, “That by the oaths of R. S. Van Tassell, Oliver Henry Wallopp and E. W. Whitcomb, judicious disinterested householders of the vicinity, upon actual view of the premises, partition be made of said lands, together with the water rights appurtenant thereto, in the following proportions, to-wit: The twenty-nine hundred and fourteen four-thousandths part thereof to the said plaintiffs, as the trustees and devisees under the last will and testament of Levi Z. Leiter, deceased, and the ten hundred and eighty-six four-thousandths part thereof to the said Marshall Field, as trustee.for the said James H. Pratt, if the same can be done without manifest injury to the value thereof, and if not, that said premises be appraised at the true value thereof in money.” (Then follows a detailed description of the various lands and water rights.) It was further ordered that a writ of partition issue to the sheriff of the County of Laramie commanding
The lands described in the petition and thus involved in the action compose three separate bodies or groups. About fifteen thousand acres are located in Sheridan, and Johnson Counties and are generally referred to in the proceedings as the Powder River ranch or Clear Creek lands, and, for convenience, will be here designated by the latter term. The remaining lands are situated in Laramie County; one group of about twenty-five hundred acres being referred to as the Rawhide ranch or lands, and the other, comprising about twenty-seven hundred acres, as the P F ranch or Platte River lands, with an additional tract of two hundred and eighty acres about four miles distant therefrom. The P F ranch or Platte River lands, with the water rights for their irrigation, and the said two hundred and eighty-acre tract were set off and assigned by the commissioners to Marshall Field, as trustee of James H. Pratt. All the other lands and water rights were by the commissioners set off and assigned to the plaintiffs. The several tracts and water rights so set off and assigned to the respective parties are described in detail in the report.
Omitting the description of the lands, the report of the commissioners is as follows:
“We, the undersigned, the commissioners named in the writ of partition'issued in this cause, and to which this report is annexed, after being each duly sworn, and after being attended by the respective parties hereto, through their counsel, and having considered such information as*24 was presented to us by said parties and their counsel, and after actually viewing and personally examining the premises in said writ described, and after fully informing ourselves as to the proportionate values of the said several parcels of land described in said writ and in said order, on our oaths do set off and assign to Mary T. Reiter, Joseph Reiter, Nancy Rathrop Carver Reiter, Marguerite Hyde Reiter and Seymour Morris, trustees and devisees under the last will and testament of Revi Z. Reiter, deceased, as such trustees and devisees, as their share of said premises, the. following described lands and water rights situate, lying and being in the Counties of Raramie, Johnson and Sheridan, in the State of Wyoming, to-wit:” (Then follows a description of the lands and water rights so assigned to plaintiffs.) “And we do also, on our oaths, set off and assign to Marshall Field, as trustee of James H. Pratt, as his share of said premises, so as aforesaid described in said writ, the following described lands and water rights situate, lying and being in the County of Raramie, in the State of Wyoming, to-wit:” (Then follows a description of the lands so assigned to the defendant Field as trustee.) The report is signed by each of the commissioners.
The defendants Field, as trustee, and Pratt filed objections and exceptions to the report. Some of the objections were to the form of the report, viz.: ' That the report fails to show or purport that.the estate was set apart in such lots as would be most advantageous and equitable, having due regard to the improvements, situation and equality of the different parts thereof; that it fails to set out the facts upon which the conclusions of the commissioners were based; and that the report furnishes no facts to inform the court so that it may set apart the estate in an advantageous and equitable manner. The other objections go to the substance of the report and question the equality and fairness of the partition as made by the commissioners. In the latter respect it was charged that the partition does not set
The plaintiffs filed their reply to the objections denying specifically the various charges of unfairness and inequality in the partition as made by the commissioners, and the charges as to the influence of said Irvine, and the impossibility of there having been a full view of the premises and an accurate estimate of the character and value of the respective groups and tracts of lands.
Thereafter, and before the hearing upon the exceptions; an intervening petition was filed by Hattie B. Pratt Magee, a resident of the State of Illinois, in which she objected and excepted to the report of the commissioners upon the ground of its unfairness and inequality, and also to all the proceedings had subsequent to the filing of the petition upon the ground that, as one of the children of James H. Pratt, she is an interested person in all of the said lands and property under and by virtue of the trust deed executed by the said Pratt to the said Field as trustee. It was alleged that said petitioner and another daughter of said -Pratt, viz., Margaret Pratt Ollson, were cestui que trusts
It appears that upon the filing of the sheriff’s return to the writ of partition with the report of the commissioners the plaintiffs and the defendant executors asked its confirmation, and the defendants Field and Pratt thereupon filed their above mentioned exceptions. Afterward, on the day of the hearing upon the motion for confirmation and the objections thereto, the complaining defendants filed a motion for leave to amend their exceptions so as to embrace an objection to any further proceedings until the
All the matters that had thus come into controversy, including the intervening petition of Mrs. Magee, appear to have been heard at the same time and they were disposed of by the same order. The court denied the petition and exceptions of the intervening petitioner and the motion of the objecting defendants for the bringing in of additional parties, the order reciting as a finding by the court in that connection that “it is not necessary at this time to make additional parties defendant in said cause as prayed for in the petition of the said Hattie B. Pratt Magee and the motion of the said defendants, nor is it necessary at this time to decide what, if any, rights the said Hattie B. Magee or any other person not made a party to the original petition in this cause may have in or to the lands described in the said petition, or any of them, under the trust deed heretofore executed by the said defendant James H. Pratt; nor the effect of the joint consent of Marshall Field, trustee, and Janies PI. Pratt to the decree of partition and the appointment of commissioners' to make partition, nor the extent to which Marshall Field, trustee, and James H. Pratt represent and bind other parties.” Upon the issues joined upon the exceptions to the report of the commissioners the
Immediately preceding the hearing and submission of the cause in this court counsel for plaintiffs in error suggested in writing the death of Marshall Field since the institution of the proceeding in error and moved the substitution in his place as one of the plaintiffs in error of Jerome 'Pratt Magee, who had become successor in trust by virtue of the trust deed and had accepted and qualified as such succeeding trustee. At the same time a motion of plaintiffs in ■error was also presented for leave to amend the petition' in error in certain respects to the end that it may show that the plaintiffs in error severally as well as jointly and severally assign the errors complained of. The motions were not consented to by defendants in error, but were taken under advisement to be disposed of upon a final consideration of the cause. The motion to- amend will be passed for the present.
We do not understand the fact to be disputed that the petition in error was filed and the summons in error issued during the lifetime of Mr. Field. As required by the statute, the errors complained of were set out in the petition in error, and no further ássignment of error was necessary under our practice. This court thereupon obtained jurisdiction of the cause, and it is clear that Mr. Field’s death did not operate to abate the proceeding. (2 Ency. Pl. & Pr., 198, 199; 2 Cyc., 770.) That it did so operate is not
The trust deed in controversy executed by James H. Pratt to Marshall Field contains a preamble reciting in substance that said Pratt and Revi Z. Reiter are joint owners of certain tracts of land in the State of Wyoming and of certain leasehold estates in other lands in said state, an'd also of live stock and other personal property situated upon or used in connection with said lands, the interest of Pratt therein being ten hundred and eighty-six four-thousandths; and further reciting that: “The said Pratt is desirous of creating an interest in the said property in his children, subject to his right to receive the income derived'therefrom during his life, and to that end to vest his interest in the said real and personal property in a trustee for the uses and purposes,
The deed thereupon proceeds to convey by apt words of conveyance unto said Field “all his (the grantor’s) right, title, interest and estate in and to all the property, real and personal, situated and being in the State of Wyoming, which is owned in common by the said James H. Pratt and Revi Z. Reiter, * * * intending thereby to convey by this instrument to the said Marshall Field all the interest of every kind and nature which the said James H. Pratt now has in and to any property situated in the State of Wyoming, in which the said Revi.Z. Reiter is also interested as part owner, whether the said property is owned by the said Pratt and Reiter as tenants in common, joint tenants, or as partners, together 'with all increase and additions to the said property so owned by, the said Pratt and the said Reiter; the said property so conveyed, assigned and transferred by this instrument in trust, as trustee, for the uses and purposes, and with the powers hereinafter stated as follows, to-wit:
“The trustee shall have full power and authority to do all acts, and to execute all instruments in his judgment necessary or proper for the proper management, care and disposition of the said property, including the right to make partition or division of any of the said property with the said Revi Z. Reiter; to authorize or join in the sale, transfer or conveyance of any of the said property, real or personal, upon such terms and at such prices as the said trustee shall deem best; and also to join in or authorize the purchase of any new or additional personal property of any kind or description in the judgment of the said trustee necessary or proper to produce the best results and income from the said property so conveyed to the said trustee; to make improvements-, to insure, to pay taxes, and to do any and all acts for the protection or to render safe and productive the property and estate hereby transferred to said trustee; and to invest- and reinvest any proceeds of the property coming*32 into the hands of the said trustee under his trust, in either real or personal property, of any kind or description, including real estate, stocks of corporations, bonds, or loans upon real estate, it being expressly understood and agreed the said trustee shall not be liable for any loss in any way arising or occurring through any mistake in' judgment or failure to act on his part, but only for wilful default.
“The written request of the said James H. Pratt to the said trustee shall be a sufficient warrant and authority for the said trustee to do any act in relation to the said trust estate, or to make, execute and deliver any instrument of any kind or nature touching- or affecting the said property, or any part thereof, or to make any investment of any part of the trust fund at any time in the hands of the said trustee under this instrument. The net income derived from said trust estate shall be paid over from time to time to the said James H. Pratt, or in accordance with his written directions ; and the decision of said trustee as to. what is income and what is principal of said trust estate shall be conclusive upon all parties interested.
“Upon the death of said James H. Pratt the trust hereby created shall terminate and be at an end, and the trust estate then in the hands of the said trustee shall go to and vest in the children of the said James H. Pratt in equal shares, the issue of any deceased child to stand in the place of and take the share- which such deceased child would have been entitled to receive if living.
“In the event of the death of the said Marshall Field during the continuance of the trust hereby created, Jerome Pratt Magee, the grandson of the said James H. Pratt, shall be successor in trust to the said Marshall Field, and shall succeed to all the trusts, estates, powers and duties by this instrument vested in the said Marshall Field, as'trustee.”
A' good part of the argument in the briefs and on oral presentation of the case was addressed to the question of the interest secured to the daughters of Mr. Pratt by the trust deed, and the necessity of having them made parties
On the other hand, counsel for defendants in error maintain that the interest of the children under the trust deed is that of a contingent remainder, without qny present or vested interest, and further that whether they take a vested or contingent remainder their interest was fully represented in the action by the trustee, who, as trustee of an express and active trust holding the fee of the Pratt interest, was the sole necessary party as to that interest. They also contend that the powers conferred upon the trustee are sufficiently broad to authorize him to make or consent to a partition of the premises binding upon the interest of all parties under the deed; but if not that under the statute, the children of Pratt were neither- necessary nor proper parties because not tenants in common with the plaintiffs below, and that the partition was at least proper as against the life estate.
: That view and the refusal of the court below to pass upon the interest of the intervening petitioner and her sister under the trust deed and the partition is criticised by counsel for plaintiffs in error, *md they refer to it ás a holding that, even though such petitioner may have rights to the property sought to be partitioned, it is not necessary that she should be heard in this case which disposes of her property. But we are inclined to doubt the justness of counsel’s interpretation o„f the court’s position. The very question that was not decided because deemed unnecessary was whether or not the partition proceedings disposed of the property of the intervening petitioner.
.We shall first direct our attention to the question whether, under the rules governing compulsory partition as affected- or controlled by our statute and upon the proceedings in this case up to and including the action and report of the commissioners, the plaintiffs were in the absence of the suggested additional parties entitled to partition in any respect or to any extent as against Field, trustee, and Pratt. At common law prior to the enactment of statutes upon the subject partition could be compelled only at the suit of a co-parcener either against a co-parcener or one who had succeeded to the interest of a co-parcener. The proceeding at law was by writ of partition. By Statutes 31 and 32, Henry VIII., the remedy was extended to joint tenants and tenants in common whether of estates of
In this country the remedy of partition has generally been regulated more or less by statute, and the jurisdiction under statute has been in some states vested in courts of law, and in others in courts of equity, and in still others the remedy may be pursued in either a court of law or equity; and, generally, the statutory preation or regulation of the remedy has not been considered as excluding equity jurisdiction over partition in proper cases.
It was essential to compulsory partition at common law that the property be held' in co-tenancy, and none but estates in possession were bound by the judgment; it did not affect estates in remainder or contingency, and a party without possession or right to possession could not invoke the remedy, for the purpose of the action was to sever an undivided possession, and thus remove the difficulties attending a joint occupancy. As persons holding an estate in lands not entitling them to possession were not injured by the mere fact of the undivided possession legally held by others, they could not require a severance of such possession. And as the remedy acted upon the possession, a partition of estates held, in remainder only without a present right of possession of any part was not enforceable; nor could partition be compelled between a tenant in possession and mere remaindermen. (Freeman on Co-tenancy and Part., 439, 440; Nichols v. Nichols, 28 Vt., 228 (67 Am. Dec.,
Partition might be had, however, between tenants for life or years, and also between the owner of the fee of an undivided part and the tenant for life of the other part; and in such cases it was not necessary to join the reversioner or remainderman, though the partition in the absence of the latter as a party would be of temporary, duration only. Mr: Freeman says: “While the rule seems to be invariable that courts will not proceed to a partition in the absence of any of the co-tenants, yet it must be remembered that this rule is confined to co-tenants of the estate of which partition is sought. Hence a partition may be ordered'of an estate for years, or for life, or of a mere equity, although the tenants of the reversion or of the legal title are not before the court.” The author was there discussing the proceeding in equity. (Freeman on Co-tenancy and Part., 463.) Judge Story on this subject remarks: “Nor does it constitute any objection in equity that the partition does not or may not finally conclude the interests of all persons; as where partition is asked only by or against a tenant for life, or where there are contingent interests to vest in persons not in esse. For the court will still proceed to make partition between the parties before the court, who possess competent present interests, suéh ás a tenant for life, or for years. But, under such circumstances, the partition is binding upon those parties only who are before the court, and those whom they virtually represent; and the interests of third persons are not affected.” (1 Story’s Eq. Jur., 656.)
In Carneal v. Lynch, 91 Va., 114, the right was upheld of a tenant for life in one undivided moiety of property to
Mr. Freeman, at Section 435 of his work above cited, adds: “A tenant for life or for years could, both at law and in equity, compel a partition. He could not compel the reversioner to join with him; nor could he occasion a compulsory partition which would be binding after the termination of his estate. * * * Partition may be had on the application of a tenant 'for years, although the tenant of the other moiety holds in fee-.” (Citing Hobson v. Sherwood, 4 Beav., 184.) In Indiana it was said: “The right of the owner of a life interest in an undivided part of real estate, to have partition, has been recognized, and, we think, should be' deemed to be established.” (Shaw v. Beers, 84 Ind., 528.) The following cases, in addition to others that might be cited, also support the proposition that partition ma}'- be had between the life tenant of an undivided
The statutory provisions of this state relating to partition are found in the civil code. The material provisions are as follows:
“Tenants in common, and co-parceners, of any estate of lands, tenements or hereditaments within the state, may be compelled to make or suffer partition thereof in the manner hereinafter prescribed.” (Rev. Stat. 1899, Sec. 4081.)
“A person entitled to partition of an estate may file his petition therefor in-the district court, setting forth the nature of his title, and a pertinent description of the lands, tenements or hereditaments - of which partition is demanded, and naming each tenant in common, co-parcener or other interested person, as defendants therein.” (Id., Sec. 4083.)
“If the court 'find that the plaintiff has a legal right to any part of such estate, i't shall order partition thereof in favor of the plaintiff, or all parties in interest; appoint three disinterested and judicious householders of-the vicinity to be commissioners to make the partition, and order a writ of partition to issue.” (Id., Sec. 4084.)
“Before a writ of partition is issued, the person of whom partition is demanded may appear in court, in person or by attorney, and consent to a partition of the estate, agreeably to the prayer and facts set forth in the petition,- which amicable partition, when made and recorded, shall be valid and binding between the parties thereto.” (Id., Sec. 4088.)
Section 4085 requires the writ to be directed to the sheriff of either of the counties in which any part of the estate lies,
Provision is made for a just valuation of the estate by the commissioners if they shall find it incapable of division without manifest injury to the value thereof, and for either party to elect to take the estate at such valuation, and if no such election shall be made, then for a sale of the property.
Manifestly the statute does not, like the statutes of some states, enlarge upon the common law with respect to the persons who may require or may be compelled to make or suffer partition. The distinguishing characteristic of tenancy in common is unity of possession or right of possession; there may also exist unity of interest and title, but that is not required. (Freeman on Cotenancy and Part., 86, 87.) There must be an equal right to the possession of every part and parcel of the subject matter of the tenancy. (Id.) It cannot be doubted that a legal title to an undivided part accompanied by possession or right of possession, whether the title be in fee or for life, gives the owner a right to maintain partition against the owner of the remaining part holding the same as a tenant in common ' with him. The provision of Section 4084 that if the court find that the plaintiff has a legal right to any part of the estate partition shall be ordered clouds the construction of the statute somewhat; but we. are not inclined to view it as preventing one with an equitable right capable of conversion-in equity into a present legal title with right of possession from obtaining full relief in one action, including partition.
■ The partition statute forms a part of the civil code which declares that there shall be but one form of action to be called a civil action, and abolishes the distinctions between actions at law and suits in equity, and the forms of all such actions and suits previously existing. ■ (Rev. Stat. 1899, Sec. 3443.) An action to compel partition is therefore, wfc think, a civil
At the common law partition was both a legal and an equitable remedy, that is to say, it might be afforded by either a court of law or equity. In cases without complication of any sort the jurisdiction was concurrent; depending upon varying circumstances, one court could grant the relief where the other could not. There is no substantial reason, we think, for designating the action under the code as exclusively either a legal or equitable proceeding. A particular action may be one or the other or a combination of both; or, to speak more accurately, perhaps, it may because of the facts alleged or the relief sought invoke what was formerly essentially equitable jurisdiction, or a jurisdiction that might have been exercised by either a court of law or equity. The statute retains the writ of partition of the law courts and does not provide for an exchange of conveyances, one of the chief advantages of the former proceeding in equity. We perceive no necessity, however, for distinguishing it as belonging to either class of proceedings. To call it a civil action is enough. The question of parties, like most other questions, must be settled with regard to the. issues in the case and the relief demanded.
Concerning the sufficiency of the parties before the court in the case at bar, it should be remembered that the ques
The code provides generally that any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of a question involved therein; and that the court may determine any controversy between parties before it when it can' be done without prejudice to the rights of others, or by savingtheir rights, but that when a determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in or dismiss the action without prejudice. (Rev. Stat., Secs. 3480, 3487.) The first provision (Sec. 3480) seems to carry out - the equitable theory as to parties, but it does not make every one referred to a necessary party to the rendition of a valid judgment. The well known distinction between necessary and proper parties is not abolished. Upon that provision the law writers generally agree that those persons who have or claim an interest in the controversy adverse to the plaintiff .are necessary parties, while those who, in contradistinction to the former are merely “necessary parties to a complete determination of a question involved,” are, as a rule, proper but not necessary parties. (Pomeroy’s Code
The chancery rule as to parties was -well stated by Mr. Justice Bradley in Williams v. Bankhead, 19 Wall., 563. “First, where a person will be directly affected by a decree, he is an indispensable party, unless • the parties are tod numerous to be brought before the court, when the case is subject to a special rule; secondly, where a person is interested in the controversy, hut will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court will not proceed without him if he can be reached; thirdly, where he is not interested in the controversy between the immediate litigants, but has an interest in the subject-matter which may be conveniently settled in the suit, and thereby prevent further litigation, he may be a party or not, at the option of the complainant.”
The rights of the parties in an action for partition are determined by the order which finds them to be tenants in common, ascertains and adjudges tlie respective shares, and orders a partition thereof, whether the order be deemed interlocutory or final. (McRoberts v. Lockwood, 49 O. St., 374; Freeman, Sec. 522.) A defect of parties plaintiff or defendant is a ground of demurrer if the defect, appears upon the face of the petition, otherwise the objection may be taken by answer, and if the objection is not raised by either demurrer or answer it is deemed to be waived, unless it goes to the jurisdiction of the court. (Rev. Stat. 1899, Secs. 3535, 3536, 3537.) We suppose that in partition upon its appearing that there is such a defect of parties as to render the court without jurisdiction, appropriate orders with regard thereto may be made in the absence of an
As determined by the petition in the case at bar, as- well as the judgment and the award, the action is one for partition between the parties’'to-the suit. Those parties only and others, if any,, virtually represented by them would be bound. We need not here determine whether under our statutes in an action between the actual tenants in common in possession the owners of reversionary interests without right of possession might be made parties; the question is, are they necessary parties? Construing a somewhat similar statute, it was held in the Michigan case of Metcalfe v. Miller, supra, that the owner of an undivided part of. the life estate, and also of an undivided part of the reversion, might have partition of the life estate as between himself and the other tenant thereof, but could not demand partition against the other reversioners.
In fact, as well as by the admission of the pleadings, the trustee, Field, was a tenant in common with the plaintiffs, whether he is to be regarded as holding the fee of the former Pratt interest or merely the title of the life tenant. He had at least the latter. The plaintiffs, therefore, were entitled to a partition as against him, unless there is substantial merit in the contention that they were themselves without right because of the possession of the executors of the Leiter will. We think that contention is without merit, for the reason that the executors offered no obj ection, but practically consented, and their possession was only that of executors during and for the purpose of administration, and not adverse, and it does not appear that the administration would be-in any wise prejudiced by the partition. (Phillips v. Dorris, 56 Neb., 293; Richardson v. Loupe, 80 Cal., 490.) The statute expressly provides that for the purpose of bringing suit for partition the possession of an executor or administrator is the possession of the heirs or
We conclude on this branch of the case, therefore, that the order adjudging that partition be had and the proceedings thereunder were not void for the- want of necessary parties, but that it was valid and binding between the parties to the suit. Indeed the statute so declares where the defendants have come' in and consented to partition. If, as contended, the interest of the children of Mr. Pratt was not virtually represented by the trustee, or if by the terms of the trust deed the latteFs appearance and consent could not and did not bind that interest, then of course those parties were not concluded by the proceedings. As they were not personally made parties, and were not necessary parties, we know 'of no practice or reason making it imperative even if proper,’ which we doubt, for the court in their absence to decide in this action what the rights of the intervening petitioner and others besides the actual parties in and to the property were, nor the effect of the- joint
In arriving at our conclusion, we have not been unmindful of the provisions of the partition statute requiring each tenant in common, co-parcener or other interested person, to be named as defendants. The term “other interested person” may be no doubt more or less broadly construed upon a consideration of a cause prior to judgment ordering-partition depending, upon the facts alleged and the remedy demanded, though we think it unnecessary to decide and we do not decide whether it is intended to embrace persons not tenants in common or co-parceners with the plaintiff in an action strictly in partition. We are of the opinion, however, that it does not prevent a partition between parties in possession as tenants in common where either or both hold less than a fee simple title, at least if the property is capable of partition. In such a case the interested persons may, it seems clear, be only the tenants in possession. Here a judgment was entered effective to the extent of adjudging partition between the tenants in possession. Whether it goes beyond that or not in consequence of the title held by the trustee and the powers conferred upon him, the district court declined to consider, and we observe no substantial reason for disturbing its action in that respect, or for this court to consider the questions involved in that inquiry.
The remaining questions relate to the report and proceedings of the commissioners and the equality of the partition. The statute is silent respecting the contents of the report and would seem to be satisfied by a report showing generally the action and determination of the commis
The record discloses three recognized classes "of lands connected with the Clear Creek property, exclusive of the lands held under leases. First, 3,407 acres of irrigated or irrigable lands; second, 1,700 acres contiguous to the irrigable lands, but without a water right; third, approximately 10,000 acres of dry lands, referred to as scrip lands, but which serve to command a range for live stock and furnish access to watering places. It appears from the affidavits of the commissioners considered upon the hearing of the objections that in determining the proportionate values of all the lands .involved in the partition and making a division
A large number of affidavits of persons asserting a familiarity with the lands and their values were filed by the plaintiffs and defendants respectively. There appears to be very little difference .in the. estimate placed upon the value of the Rawhide lands; the estimates as. tO' them varying generally from thirty-five to forty dollars • an acre. There appears also to be a substantial agreement among the witnesses as to the values of the second and third classes of the Clear Creek lands; the average as to the second class being perhaps seven dollars, though some place the value as low as four dollars, a -few at ten dollars, one or two as high as twenty, and a number at seven to eight dollars. The third class of those lands are quite generally agreed to be worth from four to five dollars per acre, a few only of the affidavits stating a higher value than five dollars.
There is, however, a wide disagreement between the parties and upon the evidence impossible to harmonize in relation.to the value respectively of-the Platte River lands and those embraced in the first class of the Clear Creek group;, and the controversy as to values-is substantially confined to those lands. According to the evidence on behalf of the complaining defendants below, the value of the first class or irrigable Clear Creek lands is from thirty to fifty dollars an acre, and of the Platte River lands from ten to twelve dollars an acre, though some of the affidavits filed by defendants place the value of the last mentioned lands as low per acre as seven or eight dollars, and others as high as thirteen or fifteen dollars; and in a majority of
From the separate affidavits of the commissioners it appears that they were agreed upon the character, quality and values of the several groups and classes of land, and they each thereby testify to- the reasonableness of the respective values, as estimated by them for the purpose of determining upon a proper division of the property. According to such affidavits, which in this particular are not controverted, the commissioners appear to have been men of large experience, long personal acquaintance with most of the lands, and possessing a general knowledge of the character, usefulness and value of lands located as these lands are. One of them shows a continuous acquaintance with the Platte River and Rawhide lands since 1858, and with the Clear Creek lands for fifteen years. It is reasonable to suppose in a matter of this kind and magnitude that the commissioners were selected because of their experience and knowledge, as well as their reputation for fairness.-
The conflict upon the evidence concerning the values in controversy is so pronounced that there would seem very small ground for assurance that the vacation of the proceedings and another reference to the same or- different commissioners would result in harmonizing in any material degree the contrary opinions of those competent to-speak
The well settled rule is that the action of commissioners in partition will not be set aside on the ground of unequal allotments except in extreme cases — as where the partition appears tq have been made upon wrong principles, or where it is shown by very clear and decided preponderance of evidence that the partition is grossly unequal. The report of commissioners in this class of cases is regarded at least as conclusive as a verdict of a jury upon a trial at law, and will not be disturbed except upon grounds similar to those on which .a verdict may be vacated and a new trial granted. Indeed, the rule is maintained by some courts that it is to be regarded with more favor than a verdict, for the reason that the commissioners are usually selected by the parties because of their superior judgment and capacity to perform this particular service, and are authorized to exercise their personal knowledge and to act upon a view of the property. (Freeman, Sec. 525.) In New Jersey it was said: “Where a partition has been actually made by commissioners, the court, by its well settled practice, interferes with their action with great reluctance. It is only where a clear mistake has been made that their proceedings will be interfered with.” (Bentley v. Long Dock Co., 14 N. J. Eq., 480.)
It is strenuously urged, however, that the commissioners valued the Platte River lands upon the erroneous assumption that they are susceptible of irrigation, and there is evidence in support of the view that as a rule they are not capable of successful irrigation. There is evidence also to the contrary; and we not only find the evidence as to that matter as conflicting as upon the general subject of value, but we think it impossible to say that the alleged fact of the mistake in the character of the lands has been established by a clear preponderance of the evidence. Persons possessing an apparently equal acquaintance with the lands
The fairness of the proceedings is challenged on the further ground that Mr. W. C~ Irvine accompanied the commissioners on the occasion of their inspection of the lands. Fie was and had been for some time the general manager of these properties, and he went with the commissioners and assisted in conducting them upon the lands and pointed the same out to them, and may have answered questions relative to them. It appears that he was present at the first meeting of the commissioners, which was also attended by the representatives of the respective parties, and by Mr. Pratt, and the commissioners and the representatives of the plaintiffs each swear that they understood at that meeting, and supposed it to be understood by all parties, that the commissioners would lie accompanied by Mr. Irvine, and certain occurrences are related tending to show a general understanding to that effect. Mr. Pratt and his counsel, however, unequivocally state in their affidavits that they had no such understanding or knowledge. Mr. Irvine states that he did not go as the representative of either of the parties, but merely to assist the commissioners in examining the property, and that he did not in fact influence or attempt to influence them in their action or determination; and that is corroborated by each of the commissioners. No
• It is imperative, of course, that the proceedings’ should be fairly conducted with an equal opportunity to all parties to be heard; and the fact that secret or undue influence had been exercised by either party upon the action of the commissioners would doubtless require the vacation of their report. The presence of the manager seems to have been in perfect good faith both on his part and on the part of the commissioners, and they each positively deny any undue influence growing out of that circumstance, or that it had any influence upon the decision of the commissioners. It seems to have been the idea of the latter, as well as Mr.
We think it unnecessary to decide whether the lands held by the partnership under leases from the state might have been included in the partition, or whether upon timely objection a partition could have been successfully resisted unless they were included. Defendants in error maintain that the leasehold estates constituted personal assets of the partnership in the possession of the executors consequent upon the failure of the surviving partner to furnish' the bond required by statute as a condition to his retention of possession. The answers consented to a partition of the premises described in the petition, and this does not seem to have been the result of a mistake on the part of the defendants below. Whatever the general rule as to the necessity of the inclusion of all the property held in co-tenancy by the parties in a partition proceeding, we think that where the parties have thus consented to a partition of certain premises without any suggestion that other tracts are also held in similar co-tenancy, an objection on the ground of the exclusion of such other tracts ordinarily comes too late after judgment and the report of the commissioners, and especially so where there is no inherent objection to a separation of the different tracts. The lands held under lease consist, as we understand, of scattering-tracts throughout the region more or less adjacent to the Clear Creek or Powder River ranches, and have been used-by the partnership as a range for live stock. They are not otherwise connected with the Clear Creek lands; and cannot, we think, legitimately be said to be appurtenant to those lands, in the sense that water rights, ditches or other improvements are appurtenances. They may, we suppose, in a limited sense temporarily enhance the value of the use of
But whatever may be the relation between the leased lands and the other property in respect to the values of either, we perceive no such inherent difficulty in making partition of the property described in the petition without including the leasehold premises, as to require a vacation of the judgment and report.
We are not convinced that plaintiffs in error were prejudiced by the fact that one of the counsel for plaintiffs below prepared the report for the signature of the commissioners. The latter had previously announced their conclusions in the presence of counsel for both parties, and then requested "co.unsel to prepare their report. We do not understand that the fact is questioned that the report as finally prepared and signed conformed in all respects' with the conclusions so previously announced. A copy of the report was handed to counsel for defendants and an opportunity afforded them to suggest changes, as we understand from the evidence. They, however, concluded not to take a position apparently consenting to the report, and declined to suggest anything as to its contents.