Smith v. Frenche

The defendants, James Erenche and his wife, except to the master’s report on two grounds, first, that the order of reference was irregular (the cause had not been set down) in view of the fact that they have answered, and next, that the master reports that the property cannot be divided without great prejudice to the owners. As to the first exception, the defendant, Mr. Erenche, who appears on behalf of himself and his wife, consented, in writing, for both, to the reference, as appears by an endorsement on the order. Both he and his wife were present at the examination of witnesses on the reference, and were both examined, neither of them made any objection to the reference on the grounds of irregularity. This objection cannot avail them. Waln v. Meirs, 12 C. E. Gr. 77. Besides, it is not a ground of exception to the report. The premises consist of about two hundred and thirty acres of wild mountain land, in a comparatively remote situation. Rone of it is arable. The wood upon different parts of it is of different values. Some of it is old and some of it young. There are indications of the existence of minerals in some parts of it. The master reports that it cannot be divided among the owners without great prejudice to their interests. Two of the defendants own each one one-hundred-and-forty-fourth part of the *117property; another, a ninety-sixth part; another, a thirty-second part, and another, one-ninth. The complainant owns five-sixths. It is quite manifest that the master is right in his conclusion as to the indivisibility of the property. The exceptions will be overruled, with costs. The defendants, Frenche and vwife, insist that if the property be sold, it should be sold in parcels. The master, by whom it will be sold, will, in the usual way, he directed by the order to sell the property in one or more parcels, as he shall deem most advantageous to the parties in interest.