Thompson v. Hardman — 6 Johns. Ch. 436

Majority

p. 436

Thompson against Hardman.

Headnote

On a bill for a partition, this Court being authorized by the statute t@ decree a sale, where Courts of law are authorized, or where the ends of justice require it, may decide on the necessity of a sale, upon the report of a master, as well as of commissioners; and where the master reports that a sale is necessary, commissioners will be appointed to sell and convey.

BILL for a partition, taken pro confesso»

J. Radcliff, for the plaintiff,

moved for a reference to a master, to examine and report whether the premises could be divided, without great prejudice to the owners, it being suggested that they could not, and that a sale would be necessary, as the premises consisted of a house and lot in the city of JYew-York.

By the statute, (1 N. R. L. 514. s. 16.) the Court of Chancery, in cases of partition pending therein, may decree a sale of the premises, in such cases as Courts of law are authorized by the act, or where the ends of justice shall require it. By the act, Courts of law are authorized to order a sale, when the commissioners shall return that a.partition cannot be made without great prejudice. The question is, whether this Court can ascertain the situation of the premises, and the necessity of a sale, by the report of a master, as well as of commissioners. A master is the ordinary and proper officer for such duties, and tie doubtless can perform the trust more conveniently than two or more commissioners. But as the sale is a power given by the statute, it may be well doubted whether' a master would have authority to execute conveyances to the purchasers. If a master was the only person

p. 437

to be employed, the Court would be obliged to compel the parties to convey, which may lead to great inconvenience and delay. If that course was to be pursued, the master might perform all the duties preparatory to the execution of the conveyances; but to convey without the act of the parties, and by the authority given by the statute, it would seem to be thé safer and better construction of the statute, that commissioners must be appointed to sell and convey, according to the course prescribed to the Courts of law.

The Chancellor, accordingly, allowed a reference to a master, to make the requisite report, but afterwards appointed commissioners to sell and convey.