Field v. Hudson

140 P. 1118, 19 N.M. 89

Opinion

OPINION.

MECPIEM, District Judge.

It is within the power of a court of equity to decree “owelty of partition” where the property is incapable of exact or fair division. Pomeroy Equity Jur. Sec. 1389; Bispham’s Principles of Equity, Sec. 492; Sawin vs. Osborn, 87 Kans. 828; 126 Pac. 1074, Ann. Cas. 1914 A.

1 In this case there being no appreciable difference in the value of the two lots, the doctrine of owelty of partition has no application. The peculiar value of lot 13 to the plaintiff, did not render that lot intrinsically more valuable than lot -14.

For this court to reverse the judgment of the lower court in part and affirm it in part, so as to give it the effect and force of a judgment of partition in kind, would be equivalent to this court rendering a judgment making partition directly, without the intervention of the statutory commissioners.

The judgment of the lower court is reversed.