Burr v. The St. Thomas

S.D. New York

Burr v. The St. Thomas

4 F. Cas. 823, 1851 U.S. Dist. LEXIS 26

CourtDistrict Court, S.D. New York

DecidedJanuary 9, 1851

StatusPublished

Cited by1 cases

This text of 4 F. Cas. 823 (Burr v. The St. Thomas) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burr v. The St. Thomas, 4 F. Cas. 823, 1851 U.S. Dist. LEXIS 26 (S.D.N.Y. 1851).

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Opinion

BETTS, District Judge.

The remedy sought by the libellants is apparently the appropriate one, and that which the court would allow in their behalf. This court has adopted the principle established by the circuit court in the case of The Seneca [Case No. 12,670], and relieves moiety owners from the loss of the use of their property when they cannot agree with their co-owners as to its employment by directing a sale and division of the proceeds. Without such aid the half owners out of possession may always, at the discretion of the others, be deprived of any profitable use of their property, and be compelled to leave the full enjoyment of it to those others on security merely to reimburse its value in case of its loss. A sale by decree of court is the only protection to be afforded in such case, and that this court will grant on a proper case made. The Onyx [Case No. 10,544],

If the claimants in the present case have any equity to prevent the allowance of that privilege to the libellants, it must be brought before the court by answer. It is not competent to them to meet the merits of the libel by a motion founded on affidavits. This in effect would lead to a decision of tne gist of the case upon matters outside the pleadings. The motion of the claimants is denied, but with liberty to them to renew it after filing and perfecting their answer.

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BETTS, District Judge.

The remedy sought by the libellants is apparently the appropriate one, and that which the court would allow in their behalf. This court has adopted the principle established by the circuit court in the case of The Seneca [Case No. 12,670], and relieves moiety owners from the loss of the use of their property when they cannot agree with their co-owners as to its employment by directing a sale and division of the proceeds. Without such aid the half owners out of possession may always, at the discretion of the others, be deprived of any profitable use of their property, and be compelled to leave the full enjoyment of it to those others on security merely to reimburse its value in case of its loss. A sale by decree of court is the only protection to be afforded in such case, and that this court will grant on a proper case made. The Onyx [Case No. 10,544],

If the claimants in the present case have any equity to prevent the allowance of that privilege to the libellants, it must be brought before the court by answer. It is not competent to them to meet the merits of the libel by a motion founded on affidavits. This in effect would lead to a decision of tne gist of the case upon matters outside the pleadings. The motion of the claimants is denied, but with liberty to them to renew it after filing and perfecting their answer.

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Bluebook (online)

4 F. Cas. 823, 1851 U.S. Dist. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burr-v-the-st-thomas-nysd-1851.

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