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420 31 H. 8, CAP. I, PARTITION. a sum of money advanced by a father to a son to purchase real estate, which was purchased accordingly, from the latter's distributive share of his father's personal estate, Hayden v. Burch, 9 Gill, 79, and cases there cited. If a portion only of the property be incapable of division it may be sold, Winder v. Diffenderffer, 2 Bl, 166. And a complainant is entitled to a partition or sale, according to the evidence, if he prove his title as tenant in common. Therefore in Campbell v. Lowe supra, where the bill averred that the land was incapable of division, that the defendant refused to divide or to unite in a sale, and that it would be for the interest and advantage of the parties to have it sold, and prayed for a sale and general relief, and the complainant proved his title as tenant in common but did not prove that a sale would be advantageous, the Court held that the cause must be remanded under the Act of 1832, ch. 308, see. 6,16 for further proceedings or proof, the inconsistent averments of the bill not affecting the right to relief under the genral prayer, and see Tomlinson v. McKaig supra; Wat- son v. Goodwin, 4 Md, Ch. Dec. 25; Earle v. Turton, 26 Md. 23. Those parts of the Statute of 8 & 9 W. 3, c. 31, relating to the sheriffs are net in force here. The sheriff therefore must discharge his duty in person, though, after a return that he was there in person received and filed, no averment will be received to the contrary, Clay's case, Cro. Eliz. 10. The form directed by the Statute applies only to cases where the de- fendant does not appear; Dyer v. Bullock, 1 B. & P. 344- For the pro- ceedings on the default of the tenant, see Halton v. Earl of Thanet, 2 W. Black. 1134, 1159. Partition of personal property.—Partition of personal property can, in general, only be obtained in a Court of equity, and if it cannot be made in kind the Court may order a sale and divide the proceeds, Crapster v. Griffith, 2 BI. 1. An exception exists where partition is decreed of a sur- plus of the personal estate of an intestate in the hands of an administrator, when ordinarily a Court of equity will not interfere with the jurisdic- tion of the Orphans Courts, and it is held that the lunacy of one of the parties is not such a special circumstance as to justify the action of a Court of Chancery, Hewitt's case, 3 Bl. 184; Williams v. Holmes, 9 Md. 281. To dereign used in the last section means to prove. "Perhaps the word dereign, and the word dereignment derived from it, may be used in the sense of to prove and a proving, by disproving of what is asserted in op- position to truth and fact," Jacob Law Diet. hoc verb. 11 Code 1911, Art. 5, sec- 38. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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