O'Dougherty v. Remington Paper Co.

This action was brought to recover dower in certain real estate claimed to be owned by and in the possession of the defendant, Defenses were interposed and a reference had to hear, try and determine the same. In the pleadings there is no issue joined as to the practicability of an actual admeasurement of a specific portion of the land to plaintiff for her dower. The only allusion thereto is in the alternative relief demanded in plaintiff’s prayer for judgment.

We, therefore, conclude it was not a matter to be tried under the order of reference, and that the evidence offered and admitted should have been rejected. Such error, however, need not involve an entire new trial. The interlocutory judgment must be reversed, and the fourth finding of law be stricken from the report, as unauthorized and unwarranted. The defendant’s exception to this third conclusion of law must be sustained.

*195It follows, as a consequence of this decision, that the court has not been legally shown “ that a distinct parcel cannot be admeasured and laid off,” as is required by section 1619 of the Code, before it may, by judgment, direct the property to be sold at public sale. Undoubtedly, in case of a trial by the court, the question of actual admeasurement of dower could be investigated and decided, so that the rights of the parties and the necessity of a sale and the interlocutory judgment could all be determined on a single hearing. The course we apprehend could not often be practical, since the feasibility of an actual partition could not generally be denied without a visible examination of the lands by the court, referee or commissioners. Indeed the possibility of an actual partition might often greatly depend upon the rights of the several parties as decided by the referee on the trial, and until such rights were so determined the question could not be intelligently considered. ¥e think, therefore, that the practice requires in all cases, except, perhaps, where the trial is by the court which finally orders the interlocutory judgment, a reference to ascertain whether actual admeasurement or partition can be made, after a decision of the .referee as to the rights of the parties under the issue, and before the judgment declaring such rights.

The sixth finding of fact does not conform to the requirements of section 1619, in that it does not find and decide “ whether a distinct parcel of the property can be admeasured and laid off to the plaintiff, as tenant in dower, without material injury to the interests of the parties? It is not sufficient that one of the parties would be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without material injury to the interests of all the parties, a sale may be had. Here there is an especial reason why a sale should not be ordered if it can reasonably and fairly be avoided. The plaintiff has a very slight interest in a property of very con siderable value given to it by improvements made by defendant, in which plaintiff has no dowable interest. The defendant has considerable claims by way of judgment against the plaintiff, which should be paid out of plaintiff’s interest in these lands or otherwise. The plaintiff is insolvent. A sale might result in a serious injury to a manufacturing industry and to defendant’s stockholders, without *196corresponding advantage to plaintiff. The defendant, therefore, has a right to demand that its interests, as well as plaintiff’s, should be considered before a sale is ordered of the lands in question.

We conclude that the interlocutory judgment should be reversed, and that the Special Term proceed to appoint a referee or commissioner to ascertain whether plaintiff’s dower can be admeasured by actual partition. The defendant should have costs of this appeal to be paid by plaintiff.

For the same reasons it follows that the order denying defendant’s motion for the appointment of a referee or commissioner to admeasure plaintiff’s dower, or to ascertain whether it could be admeasured, should be reversed and said motion granted, and the eourt at, Special Term, will appoint such referee or commissioner under these decisions, upon due and proper notice. No costs are allowed upon the appeal from the order.

Interlocutory judgment reversed, and Special Term directed to proceed and appoint a referee or commissioners, to ascertain whether plaintiff’s dower can be admeasured by actual partition. Costs of appeal allowed defendant, to be paid by plaintiff. Also, order reversed and motion granted, and the Special Term directed to appoint a referee or commissioners, upon proper notice and application therefor, without costs on appeal from the order.