Sarde v. Sarde

delivering the opinion of the Court:

The questions chiefly discussed were whether the issues of law and fact raised by the pleadings should be heard and determined by the Orphans’ Court, or determined by the Superior Court on an issue sent by this Court for trial there, or whether the parties be remitted to their action at law, such as ejectment.

But for section 3301 of the Revised Code of 1915, it would be clear that the Orphans’ Court did not have the power or right to proceed with the partition cause where there is a question raised in the pleadings as to whether the premises were held by the parties to the cause as.tenants in common or coparceners. Knight v. Knight, 10 Del. Ch. 304, 89 Atl. 595.

The language of section 3301 is very broad, and. in some respects of the case would entitle the Court to decide all the questions raised, including the conflicting claims as to the ownership and legal title to the land; and the desire to simplify procedure and do complete justice to the parties already brought into Court *435without sending them to another court for relief would move this Court to do so.. Still, the trial of titles to real estate has quite uniformly been held in this State to be not in Chancery, but in the law courts, and parties are left to pursue legal remedies there when title to land is questioned even incidentally in a court of equity. So much the more should this theory prevail where the Orphan’s Court is exercising a limited jurisdiction, such as in a partition cause, and where equitable powers are conferred on that Court by statute. In other words, when general equity powers touching partitions of land are conferred on this statutory Court, with very limited jurisdiction, the Court should not exercise wider powers when a Court having general, inherent, traditional equity powers would not do so. Where matters determinable at common law-are brought before the Chancellor in equity, he is required to remit the parties to the law courts that the issues may be tried there by a jury. Revised Code of 1915, § 3844. In a partition cause the Orphan’s Court, even if it be given general equity powers, should either do the same, or dismiss the petition. As it is expressly given power to send issues to the Superior Court, it is justified in retaining jurisdiction of the main cause until this issue has been tried.

In the case now before this Court, then, the petition should not be dismissed, but jurisdiction retained and an issue framed and sent to the Superior Court to determine by a jury whether the petitioners and defendant at the time of the filing of the petition for partition held as coparceners the premises described in the petition as No. 2, and any other issue raised in the cause as to the legal title thereto.

The proceedings as to partition of No. 1 are suspended until the issues as to No. 2 can be determined.