By the Rev. Sts. c. 103, § 25, when the premises of which partition is demanded cannot be divided without damage to the owners, the whole estate “ may be set off to any one of the parties, who will accept it, he paying to any one or more of the others such sums of money as the commissioners shall award, to make the partition just and equal.” This statute confers upon the commissioners full power to determine whether the estate can be divided without damage to the owners, and, if not, to which of the owners it shall be assigned, paying such sums by way of owelty as may be fixed by the commissioners. The objection that the respondents had no opportunity to be heard is not well founded; for the commis*492sioners had authority to hear them, and, in the absence of anything appearing on the record to show the contrary, it is to be presumed that they did hear all parties upon every matter within their jurisdiction. Judgment affirmed.
Dan King vs. William Reed & another.
Commissioners of partition under Rev. Sts. c. 103, § 25, may set off the whole estate to either of the parties, and award that he pay the other parties the value of their shares as fixed by the commissioners; and it is to be presumed, unless it otherwise appears, that the parties were duly heard on the question to whom the whole estate should be set oit.
Petition for partition. The commissioners appointed by the court of common pleas reported that, after notice to all parties interested, they had viewed and appraised the premises, *491“ and having adjudged that the same cannot be divided without injury thereto and depreciating the value thereof,” had set off and assigned the whole to the petitioner, he paying the respondents a fixed sum, “ as the full value of their one tenth part thereof.”
The respondents objected to the acceptance of the report, because the commissioners had “ not offered or given the respondents the privilege of taking the whole of said premises by paying the value of the petitioner’s share therein to him.” This objection was overruled, and the report accepted, and judgment given accordingly; and the respondents appealed.
G. I. Reed, for the respondents.
If commissioners for partition have a right under the statute to assign to one of the parties the whole estate against the claim of another that it should be assigned to him, they can only do so after offering the whole estate at the appraised value to each of the parties interested, and then, if more than one is willing to take the estate, hearing the parties upon the question to whom they shall assign it. Rev. Sts. c. 103, § 25. Chase v. Hathaway, 14 Mass. 224. Scott v. Dickinson, 14 Pick. 278. Allis v. Morton, 4 Gray, 64. There may be strong reasons why one should have it rather than another. To be divested of his estate may be a greater injury to one than to another. One may be willing to give more than the appraised value.
E. H. Bennett, for the petitioner.
Case Details
11 Gray 490
77 Mass. 490
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