Faires v. Pappmeier

SHINN, P. J.

Appeal by plaintiff from an interlocutory judgment for partition of 4 acres of land under which referees would allot one half thereof to plaintiff, and the other half to six defendants, as a unit, “quality and quantity to be relatively considered.” The points raised on the appeal are that plaintiff should have been allowed counsel fees and costs incurred in the prosecution of the action, and that the court should have ordered the property sold instead of partitioned.

[714]

The court found that the expenses of counsel and costs of the respective parties were not for the common benefit of all the parties and should be paid by the respective parties who incurred the same. Respondents agree with appellant that the finding was in error, that counsel fees and costs should be allowed the respective parties who are able to prove themselves entitled thereto and concede that the judgment should be modified accordingly.

We think the second point is not well taken and that the court did not err in ordering a partition. The land, which is unimproved, has a frontage of 330 feet on Anaheim-Telegraph Road and 571.7 feet on "Valley View Street, in the county of Los Angeles, and contains 4.3 acres.

It was alleged in the complaint that the land could not be partitioned without great injury to the property and great prejudice to the rights of the parties. Defendants, Helen A. Madden, owner of an undivided one-tenth interest, Charles E. Haas, owner of an undivided one-twentieth interest, Waldron Pappmeier, as administrator with the will annexed of the estate of John A. Pappmeier, owner of an undivided one-tenth interest, Walter G. Jackson and Mildred Mae Jackson, owners of an undivided one-tenth interest, C. C. C. White and Lula M. White, owners of an undivided one-tenth interest, George Cunningham Sharp and Agnes S. Sharp, owners of an undivided one-twentieth interest, answered the complaint and denied that the land could not be partitioned without injury or prejudice to the rights of the parties. , Under stipulation of the defendants their interests were considered as a unit. They all opposed the sale of the property.

Plaintiff, who had acquired his interest by tax deeds and was endeavoring to force a sale as against the unwilling defendants, had the burden of proving it was not a proper case for partition in kind. Under our statutory law (Code Civ. Proc., §§ 752a, 763), in cases of eoownership the court may order a sale only where partition cannot be had without great prejudice to the owners. Forced sales are strongly disfavored.