Majority
p. 323St. Felix v. Rankin and others. May 9, 1839.
Headnote
Partition.F., the complainant, supposing he has the whole title, improves parts of real estate and makes mortgages and sells a portion. Afterwards it turns out that the legal estate to 1-42 is in R.’s heirs. In a bill for partition : It was held, that the complainant and his grantees should have the improved portion and that his mortgages should be liens thereon.
Bill for partition. The cause came up on bill and answer,
The complainant purchased lots of land at Brooklyn ; and believing he had a title to the whole, he made mortgages thereon and also sold some parts which, with a portion of the remainder, were improved by the erection of buildings. He afterwards ascertained that the title as to one forty-second part was in the heirs of a John Rankin. In praying for a partition, the complainant asked that the portion to be set. apart to him and his grantees should embrace the improved portion; while the heirs of Rankin claimed to be entitled to a share in the improvements.
Mr. C. Bushnell, for the complainants.
Mr. A. P. Man, for the defendants.
In making the partition, the Dec. 24.
p. 324
complainant is entitled in equity to have forty-one out of forty-two parts set aside so as to include the buildings and other permanent improvements which he or those from whom h6 derived title, or his grantees, Smith, Girding and Siemon, have erected and made on the land ; and the one forty-second of the whole premises to which the defendants are entitled must be set off to them, so as not to include any such buildings or other improvements. It may be referred to a master or to commissioners to make the allotment accordingly and to describe, by metes and bounds, the one forty-second part so to be set apart and held in severalty for the heirs of John Rankin ; and the master must ascertain and report whether this forty-second part can be partitioned among those heirs, or whether a sale thereof will be necessarv ; and if he finds that a sale must be had in order to make an equal division among them, then that the master proceed according to the 177th rule to ascertain and report upon their title and, according to the 178th rule, to ascertain if there are any specific or general liens affecting this portion of the premises. The cause must be set down for further directions upon .the master’s report, both in regard to the allotment as between the complainants and the defendants and in regard to the partition or sale of the forty-second part as between the defendants themselves ; and then the decree to be made will restrict the mortgages which the complainants or those holding under him have created to their part of the property, namely, the forty-one of the forty-two parts. I do not believe that the justice of this case, as between the complainants and the Rankin heirs, calls for any account to be taken of the rents and profits or of taxes and assessments and such an accounting may be dispensed with. Order accordingly.