Field v. Hudson

Citations

• 25 N.M. 7

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Under the statute, article 19 (sections 4379-4386) Code 1915, governing partition of real estate, the district court has no power to enter a judgment partitioning real estate without the intervention of commissioners, and the judgment of the court must be based upon the report of such commissioners. Hence, where commissioners appointed to make partition report that the real estate in controversy can be partitioned in kind, upon the payment of owelty by one party, and a decree is entered by the district court in conformity with such report, which upon appeal is reversed, because not a proper case for owelty, the trial court, upon remand, properly refused to enter judgment upon such mandate decreeing partition upon the report of said commissioners, so held to be improper, and referred the matter to new commissioners. P. 10</p> <p>2. Section 4385, Code 1915, furnishes the guide as to when sale of real estate sought to he partitioned can be decreed, viz.: “When any lands, houses or lots are so circumstanced that a partition thereof cannot be made without manifest prejudice to the owners or proprietors of the same, and the commissioners appointed to partition the same shall so report to the court.” P.. 11</p> <p>3. Under the partition statute of this state the court is not required to instruct the commissioners as to the law further than the instructions contained in the decree.</p> <p>P. 12</p> <p>4. A report of commissioners that the land cannot be partitioned without manifest prejudice to the owners or proprietors of the same need not contain the facts and data upon which they base their conclusion. P. 13</p> <p>5. Commissioners in partition under a statute which does not so require are not obliged to give notice to the parties and to hear evidence. The parties interested have their day in court when the report' comes' before the court for approval or rejection. P. 13</p> <p>6. Exceptions to the reports of the commissioners should b