Summary
In McCauley v. Brooks, 16 Cal. 28, the court said: "To an appropriation within the meaning of the constitution nothing more is requisite than a designation of the amount and the fund out of which it shall be paid."
Summary of this case from State v. LagraveOpinion
Decided December 3, 1929.
Under P. L., c. 354, a petition for partition of several tracts of land each located in a different county and all belonging to the same estate may be maintained in any one of the counties. A record of the partition in such case must be recorded in the registry of each county where the land lies.
PETITION, for the partition of several tracts of land which the parties hold in common as heirs of Louis B. Brooks. The lands lie in several counties, and all are included in the petition filed in Grafton county.
The defendants pleaded that all the parties had joined in a deed of trust conveying the property to a bank, to hold for certain purposes.
The plaintiff replied that the deed had never been accepted by the bank, that it was without consideration, that it had been revoked by the parties, and that she signed it under a mistake as to its terms.
The superior court (Sawyer, C. J.) transferred the question whether the proceeding in Grafton county could apply to all the lands, and "the questions raised by the pleadings."
James M. Rosenblum, for the plaintiff.
Owen Veazey, for the defendants.
Counsel on both sides are agreed that under the provisions of Public Laws, chapter 354, section 2, the petition properly includes all the lands in the state held by the parties as tenants in common. The manifest intent of the statute is that county lines shall not divide jurisdiction in partition proceedings. The proceeding may be brought "in the county in which the estate or any part thereof lies." Ib. If the lands were all in Grafton county, no one would doubt the propriety of including all the parcels in one petition. It was not the purpose of the statute to put the parties to the expense and inconvenience of separate proceedings where separate parcels, all parts of one estate, lie in different counties.
The provision that "the partition so made shall be recorded in the registry of deeds for the county where the real estate lies" (P. L., c. 354, s. 14), of course requires a record in each such county.
Counsel are also in agreement that the transfer of "the questions raised by the pleadings" presents no question of law. There was neither a demurrer to any pleading, nor an exception to its sufficiency. It is the ordinary case of pleadings which seek to present for determination certain issues of fact. Such a record raises no question within the jurisdiction of this court.
Case discharged.
All concurred.