Gordon v. Acuff

Citations

• 4 Del. Ch. 63

Syllabus

<p>Where, in a cause in partition, a mortgage, alleged in the petition to be a lien upon the entire land to be divided, was afterwards found to be a lien upon only so much thereof as under the return of the commissioners, was allotted to one tenant in common, and a small portion of the allotment to the other tenant in common, the greater part of whose allotment comprised that portion of the lands which had been released from the lien of the mortgage. Held, that the party, whose allotment included the portion which was free from the lien, was entitled to have the partition confirmed, upon paying his share of the mortgage.</p> <p>The allotment to one tenant in common, of a right of way through the allotment of the other tenant in common, is not a ground for setting aside the return of the commissioners.</p> <p>The proper method of proceeding to set aside the return of the commissioners in partition, is by a rule to show cause, founded on exceptions filed, supported by affidavit as to matters of fact.</p>