Gordon v. Acuff

4 Del. Ch. 63

• Court: Court of Chancery of Delaware
• Decided: February 15, 1871
• Status: Published

Opinion

The Chancellor :—

No questions are presented for the consideration of the Court, except such as arise out of the two objections considered.

1. The effect of the liens, 2. The right of way.

The latter is not made a subject of exception in the petitioners affidavit, but was objected in argument, and taken notice of because the question is one of defect of authority apparent on the record.

The former is, therefore, the only matter of exception,properly speaking, brought to the notice of the Court.

I am still of the opinion, intimated at the close of the argument upon that branch of the case, that it is not a sufficient ground upon which to set aside the return. The respondent claims the right to have the partition stand, upon his paying his share of the paramount lien for which both the tenants in common were equally liable. If the partition is such as should otherwise stand, the respondent is entitled to remove the liens and have it'confirmed.

Upon this point, I should add, that the reliance of counsel upon an application to the Court, and his omission to appear before the commission, was the only-course to be taken, and has not prejudiced him. For relief was not at all before the commissioners, but before the Court, and, if here it has become subject to the privilege of the respondent to remove the liens, that is a consequence which counsel could, by no possibility, have avoided.

Upon full consideration of the objection made, that the commissioners exceeded their powers in laying out and allotting a right óf way, I am of opinion that the objection is not well founded in law.

No other ground of objection is before the Court. The concluding clause of the affidavit alleges that the said division is in “ other respects unequal and unjust.”

It is clear, and, indeed, is so stated by counsel, that there was absolute reliance.upon the liens as a ground for setting aside the partition.

The present proceeding is not in the proper form for taking exceptions to the return, which should be by application for a rule to show cause, founded upon exceptions filed, supported by affidavit as to matters of fact. There are two reasons for this practice.

i. It gives proper notice as between the parties.- 2. It is the only mode of securing an appeal.

In the present case, in view of the surprise which seems to have been the result of the reliance of counsel upon the effect of the liens, I shall allow exceptions to be filed, and will hear an application for a rule to shew cause. At the same time, I shall require the case to be proceeded with forthwith, in order that no inconvenience may result from further delay.

Subsequently, the plaintiff’s second affidavit was filed, together with his formal exceptions, setting forth in detail, the objections taken to the partition made by the commissioners, including those which had been passed upon by the Court and sundry others, raising only questions of fact.

Thereupon, a motion was made for a rule to shew cause why the return should not be set aside. The argument upon this application related only to the sufficiency of the affidavit and exceptions, so far 6s they alleged matters of fact, unconnected with the points of objection previously considered.

The rule to shew cause was issued, and upon the return of the rule, witnesses were heard, and the questions of fact involved were considered.

At this hearing, the respondent’s counsel produced and filed, in the cause, the receipt of the holder of the mortgage, subject to which the tenants in common held their title, for one half the amount due thereon for principal and interest, the same having been paid by the respondent.

The Chancellor:—

The first and second exceptions are founded upon the mortgage lien. It appears by the receipt filed in the cause, that the respondent has, since the exceptions were filed, paid an equal half part of the mortgage money, debt and interest. There remains unpaid, therefore, of the mortgage as a lien on the part allotted to the petitioner, only so much thereof as he is in equity and good conscience bound to pay by reason of his tenancy in common of the premises bound by the mortgage. These exceptions are, therefore, disallowed.

The third exception, which relates to the assignment of the right of way, has already been determined to be insufficient in law, and is, therefore, disallowed.

All the other exceptions are unsustained by the proof and are, therefore, disallowed.

The costs incurred by reason of the first three exceptions will follow the costs of the cause, and the costs incurred by reason of all the other exceptions must be paid by the petitioner.

The rule to shew cause was discharged, and the partition made by the commissioners was confirmed.