Allard v. Carleton

3 A. 313, 64 N.H. 24

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1885
• Status: Published

Opinion

Blodgett, J.

Whatever is capable of being divided may be the subject of partition in equity (Allnatt, Partition, 84) ; and the inconvenience or difficulty of making partition is no objection. 1 Sto. Eq. Jur. (12th ed.), s. 656. Moreover, for the sake of convenience, in equity a recompense may be made by a. sum of money to one of the parties, so as to prevent injustice or unavoidable inequality fib., ss. 654, 656) ; or the court may order a sale of the subject-matter, and a division among the several owners according to their respective titles, as its powers are adequate to a full compensatory adjustment. Pell v. Ball’s Ex'rs, 1 Rich. (S. C.) Eq. 361; Holmes v. Holmes, 2 Jones (N. C.) Eq. 334; Gregory v. Gregory, 69 N. C. 522; McGillivray v. Evans, 27 Cal. 92; Royston v. Royston, 13 Ga. 425 ; Coleman v. Lane, 26 Ga. 515 ; Graham v. Graham, 8 Bush. (Ky.) 334; Thurston v. Minke, 32 Md. 571; Ross v. Ramsey, 3, Head (Tenn.) 15. And if the defendant’s right to the spring and aqueduct is to be regarded as an appurtenant to and a part of his hotel property, as he contends, an order of sale of such right in common with those of the plaintiffs’ might, under the circumstances, properly be ordered if the partition proceedings were at law (G. L., c. 247, s. 25) ; and the power of the court to make such order can certainly be no less when the proceedings are in equity.

Exceptions overruled.

Clark, J., did not sit: the others concurred.