On a motion to recommit a report of commissioners for partition, upon the ground, among others, that the reported division is unequal and unfair, the court will receive testimony upon that point. Semble. That if the evidence shall show that the division proposed by the commissioners is grossly erroneous and unequal, the report will not be received, but be re-committed, or the subject-matter be referred to a new board of commissioners.
BRAYTON, J.
The principal objection against the report is that it is unjust and unequal, — that the portion of the estate assigned to one party is of much greater value than the portion assigned to the other.
The reply made on the other side is, that there is nothing in proof before us, and the question made here is, whether we here can go into evidence upon the subject.
We find, in the cases from other States, that it is the practice to receive evidence upon cases like this; and I suppose this practice has grown up from the fact that commissioners proceed to divide estates upon their own judgment, and do not receive testimony, and therefore there is no testimony to be reported if asked for. We have come to the conclusion, therefore, that this must be admitted; and, if it can be shown that the division is grossly erroneous and unequal, the Court must have some supervision over it, and not render the report of the commissioners conclusive, without inquiry.
[The report was recommitted.]