Majority
p. 226Tucker and Tucker.
Headnote
An order for sale of" premises in partition will not be made unless the court are satisfied a necessity for such order exists. It is necessary, therefore, that the facts and circumstances be stated upon which the opinion of the commissioners is founded.Partition of lands. In this case a report of the commissioners appointed to make partition was read, stating that the lands, &c. were so situated that partition could not be made without great prejudice to the owners, and a motion was made for a sale. The report did not state any facts upon which the opinion of the commissioners was founded.
The report should have stated the facts and circumstances upon which the opinion of the commissioners was founded, so as to enable the court to judge as to the propriety of. a sale. It is only when we are satisfied that the report is just and correct, that a rule for a sale of the- premises is authorized. 2 R. S. 323, § 38. The motion must be denied.