McCann v. Brown

43 Ga. 386

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

Warner, Judge.

This was an application to the Superior Court for partition of lot of land number one hundred and seventy, in Marion county. The partitioners appointed by the Court to make partition of the land, reported to the Court that it could not be equally divided between the parties agreeable to law, and recommended a sale of the land for division, to which report of the partitioners, the defendant filed objections in writing, alleging that said land could be equitably divided between the parties by metes and bounds without injury to the value thereof. The Court, without hearing any evidence in regard to that question, ordered a sale of the land on the report of the partitioners, to which the defendant excepted. It was the legal right of the defendant to caveat the return of the partitioners, and the Court should have heard evidence as to whether a fair- and equitable division of the land could have been made by metes and bounds, and if from that evidence offered by the parties in interest, it should be proved to the satisfaction of the Court that a fair and equitable division of the land by metes and bounds could not be made, then to order a sale of the land : Code, sections 3925, 3927. Judgment reversed.