Emerson v. Pierce

BIRD, V. C.

Bill to establish claim of title, and for partition. On motion to confirm master's report.

George Hilton, for the motion.

BIRD, V. C. It is now disclosed that this report rests on a bill filed for two distinct and specific purposes: First, to establish a claim of the title to the lands named in the bill in favor of the complainants, and against the defendants; and, second, for the partition of those lands among the complainants. The first object has been attained; can the other be attained in the same suit? In other words, the main object having been accomplished, can the suit now proceed? Another question is involved: Can there be a suit in chancery, under our practice, without a defendant? This is the case before me. By virtue of the decree already made, the defendants have been decreed to have no interest in these lands. This terminates the litigation as to them, to all intents and purposes. They are as completely out of the case as though they had died, and with their death all and every right, title, or interest ever owned or claimed by them had, by operation of law, become extinguished. In such case, could the complainants proceed in the same cause to make mutual disposition of the subject-matter? I think not.

But it is said that, in this case, the bill prays for partition. I do not seethat that lessens the difficulty. And it is said the court will not hesitate because of mere technicalities, but will brush them aside, and effect justice, without extra costs and delay. It is not a question of mere procedure, nor of technicalities, nor of expenses; but of jurisdiction, or right, or ability of the court to act in such case. Can any two or more citizens unite to ask the court to aid them in settling an account, in making division of the goods which they hold in common? Can two or more, being partners, and claiming all the partnership assets against others, join in asking the court to declare that those others have no interest, and then, after so declaring, to make an accounting and division among them? I think not. The very most that can be said of such procedure is that the court, or the person holding the court, has used the forms of law to arbitrate, but without any agreement between the parties to abide by the result. Hence it will be seen that in my judgment, in every such case, the court can do nothing to aid the complainants. Every step taken will be ineffectual, because not binding; and no decree would be a bar when pleaded, unless acquiesced in so long that lapse of time became an estoppel. In other words, every such proceeding is nothing more nor less than voluntary; and this characteristic cannot be changed even by the court of chancery recognizing the proceedings.

I cannot advise a confirmation of the report.