Carter v. Nelson

4 Ky. Op. 320, 1869 Ky. LEXIS 541

• Court: Court of Appeals of Kentucky
• Decided: June 17, 1869
• Status: Published

Opinion

Opinion op the Court by

Jtjdge Williams :

As the appellant owned three fourths of the tavern house and adjoining land, and appellee the other, he had a right upon his petition, for that purpose, to have a sale in gross, if the property was not susceptible of division, or if it was, a partition.

As appellant protested against a sale, and as the court ascertained through commissioners, that the property was susceptible of a division and two of the three commissioners agreed on a partition and reported it to court, which the court confirmed after hearing the evidence, and though six of the ten witnesses were of opinion that the partition was not equal according to interest, yet the others together with the commissioners thought it was, so, if all were equally credible in judgment and knowledge, we could not reverse on this state of facts, but it is apparent that Mrs. Carter got that part of the property which is the most productive and now valuable without considerable outlay, whilst the land assigned to Nelson is adjoining other premises of his and therefore the more beneficial to'him and this is an equitable reason for so assigning it, unless it does the other joint owner injustice, which does not appear.

Wherefore the judgment is affirmed.