Woodward v. Raum — 3 Cal. Unrep. 734

Majority

p. 734

WOODWARD et al. v. RAUM et al.

No. 14,779;

January 11, 1893.

31 Pac. 930.

Headnote

Partition—Real and Personal Property.—In an action for partition of real estate, with the buildings and personal property thereon, it is proper to order partition of the real property separate and apart from the personal property, where it does not appear that such course will greatly prejudice the owners.

APPEAL from Superior Court, City and County of San Francisco; W. T. Wallace, Judge.

Action for partition by one Woodward and others against one Baum and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

John B. Harmon for appellants; Estee, Wilson & McCutcheon and W. W. Cope for respondents.

Appellants commenced this action for partition of the property known as “Woodward’s Gardens,” consisting of three parcels of land, with the buildings, structures, improvements, art gallery, museums, menagerie of wild animals, and other personal property. The contention of appellants in the court below was, and their contention here is, that the entire property, real and personal, constitutes one piece of property, of which a partition cannot be made without great prejudice to the owners, and therefore a sale of both the real and personal property should be made together. The court, however, found that a partition of said real property, separate and apart from said personal property, might be made without great prejudice to the owners, and decreed accordingly. Is that finding justified by the evidence? We think it is. There is some conflict in the evidence upon this question, i. e., witnesses differed in opinion as to whether the real estate would bring more if sold without the wild animals and other personal property or not. After a careful reading of the evidence on this question, we are not prepared to say that the evidence even preponderates against the finding of

p. 735

the court below. If it had appeared to that court that a partition could not be made without great prejudice to the owners, a sale might have been ordered: Code Civ. Proc., sec. 752. But it did not appear to the court below, and does not appear to us, that a partition cannot be made without great prejudice to the owners; and the owners themselves appear to be equally divided upon this question.

Judgment and order affirmed.