Opinion
May Term, 1819.
From New Hanover.
A man dies seised of lands situated in two counties. The lands in one county are partitioned among the heirs at law, by commissioners appointed by the County Court, agreeably to the provisions of the act of 1787, ch. 17. This partition does not preclude the Court of Equity from decreeing a sale of the lands situate in the other county, if it appear to the Court that partition cannot be made of the lands without injury to the parties interested.
This was a petition filed in the Court of Equity for NEW HANOVER, under the act of 1812, ch. 25, which gives to the Courts of Equity power to decree the sale of lands, where it shall appear that an actual partition cannot be made without injury to some, or all, of the parties interested. Samuel Strudwick, the elder, died in July, 1810, seised of real estate situate in the counties of Orange and New Hanover. The petitioners, and Elizabeth, wife of P. P. Ashe, were his heirs at law. Partition had been made of the real estates in Orange, by commissioners appointed for that purpose, agreeably to the provisions of the act of 1787, ch. 17. This petition was filed, praying for an order to sell the real estates in New Hanover, upon the ground that they could not be partitioned without injury to the parties interested. It appeared to the satisfaction of the Court, not only by sundry affidavits appended to the petition, but also by the finding of a Jury, that partition of the real estates described in the petition could not be made without injury to the parties interested; but, as part of the lands descended from William Strudwick had been partitioned, and those described in the petition had not then been taken into view by the commissioners, so as to enable the Court to decide, whether, (208) if all the lands descended had been taken into view by the commissioners, partition could not have been made without injury to any of the parties, the Court doubted whether the case of the petitioners came within the purview and meaning of the act of 1812, ch. 25, and sent the case to this Court.
The verdict of the Jury is, that the lands cannot be divided without great injury to the petitioners, and that a sale would be greatly to their interest. This brings the case completely within the act of 1812, ch. 25, which authorizes the Court to make an order of sale in all cases where an actual partition cannot be made without injury to some one, or all, of the parties interested. That the lands in Orange have been divided, makes no change in the power of the Court as to those now in question. (209)