Wilkin v. Wilkin

1 Johns. Ch. 111, 1814 N.Y. LEXIS 188, 1814 N.Y. Misc. LEXIS 27

• Court: New York Court of Chancery
• Decided: August 29, 1814
• Status: Published

Opinion

The Chancellor.

This was not strictly a bill for partition. It was a bill for discovery, and for carrying into execution a partition, char -ec to have been formerly made. The defendant denies the title of the plaintiffs, and denies the fact of any partition. The parties have taken testimony on this point, and the plaintiffs have failed in the proof of their allegation, that a partition was formerly made, and still more in the designation of the specific portions assigned to each of the brothers. There is no evidence on the point, on which the court can act. It is, then, contended, that the bill is tobe sustained for the purpose of awarding a commission to make partition, and that, although the specific prayer, in the bill, is for the delivery of possession, and for the execution of proper conveyances according to the partition charged, yet that, under the general prayer for relief, a partition de novo may be decreed. With respect to this point, I apprehend the rule to be, that though the bill tain, as usual, a prayer for general relief, and, also, a prayer for specific relief, that the plaintiffs may have other specific relief, provided it be consistent with the case made by the bill. This was the rule laid down by Lord Erskine, in Hiern v. Mill, (13 Ves. 110, 120.,) and it seems to be agreeable to the principle formerly assumed by Lord Hardwicke. (Grimes v. French, 2 Atk. 141. Dormer v. Fortescue, 3 Atk. 132.) There does not appear to be any objection, in this instance, to the application of the rule, on the ground of surprise or prejudice; for one objectofthebill, and of the specific prayer, is partition, not, indeed, a partition entirely new, but the complete execution of the one alleged to exist already in some imperfect degree. If, therefore, there was no question about the plaintiffs’ title, I think I should have no doubt about the propriety of awarding a partition; for it would then be a relief perfectly consistent with the case made. But the title of the plaintiffs is denied, and the bill states, that the plaintiffs had commenced an action of ejectment at law, which was then at issue. The jurisdiction of chancery, in awarding partition, is not only well established by a long series of decisions, which are noticed by Mr. Hargrave, (N. 23 to Lib. 3 Co. Lit.,) but it has been found, by experience, to be a jurisdiction of much public convenience. (Calmady v. Calmady, 2 Ves. jun. 570.) The court, however, does not sustain a bill of partition, unless the title be clear; and, in the case of The Bishop of Ely v. Kenrick, (Bunb. 322.,) the bill for partition was dismissed because the title was denied. In another case, (Cartwright v. Pultney, 2 Atk. 380.,) Lord Hardwicke observed, that where there were suspicious circumstances in the plaintiff’s title, the court would leave him to law; and, from several cases, it appears to have been the course of the court, when the question of title, on a bill for partition, was in issue, to give the plaintiff a reasonable opportunity to try his title at law, and, in the mean time, to preserve the bill. (Bliman v. Brown, 2 Vern. 232., and the observation of the Master of the Rolls, in Parker v. Gerard, Amb. 236.) This appears to me to be the most advisable course in the present case. The questions on the title of the plaintiffs, are'strictly legal questions, as, whether the estate created by the will, and by the deed, was an estate in joint-tenancy, or in common, and whether the plaintiffs are heirs of the person last seized. It may, also, be made a question at law, as' has been suggested, whether the defendant be not protected from the claim by the statute of limitations; this last consideration renders it still more proper that the plaintiffs should first be required to establish their title at law, before they come here for a partition. I shall, therefore, alter the decree heretofore made, for dismissing the bill with costs, and shall retain the bill, and leave the cause open until after the next circuit court, to be appointed and held in the county of Orange, when either party will be at liberty to move in the cause for such further order or decree as the case may require; and all further questions are, in the mean time, reserved. A similar course was pursued in a case mentioned in note 1. to Goodright v. Wells, (Doug. 773.,) where the Master of the Rolls would not decide the legal question, but retained the bill for a twelvemonth, to enable the plaintiff, in the mean time, to assert his right at law.

Rule accordingly.