PARTITION OF REAL ESTATE.
The Committee on Revision's bill [S. 156], concerning the partition of land, being read the third time--
Mr. MENZIES explained that the bill is amendatory of the partition act of May 20, 1852. It enlarges the first section; strikes out the word "co-partner;" inserts guardians and trustees, embracing them as tenants in common. It eliminates some four or five sections, which refer to proceedings in Courts in relation to partition suits. It permits Commissioners appointed to divide land, to acknowledge their acts before any competent officer, and send, the same to the Court, instead of incuring the expense of traveling some distance to the County seat for the purpose of presenting it in open Court. Then it divides expenses of the suit ratably among parties thereto. Now, in some cases, one party pays expenses for services that inures to the benefit of all. This bill simplifies the partition act, and eliminates much that is mere verbiage.
Mr. HEFRON had great respect for the Revision Committee, but pointed out objections to this bill. The Legislature intends to give widows a homestead on partition, and give her a right to say in what place her share should be set off to her. This bill gives her no more rights than other tenants in common. Then it provides that all expenses, including attorney's fees, shall be paid ratably. Other tenants may not desire partitions, while the one bringing suit does, and under this bill all must pay a proportion of the expense. Where a man is required to pay something, he ought to have a voice in the contract. There should be no taxation without representation. He could not understand how an administrator or guardian could become a tenant in common.
Mr. BELL contended if the administrator guardian, executor or trustee could not show interest he would go out of Court. The only question that can be raised against the passage of this bill is the clause as to attorneys' fees. If they are not sui adjuerus the only manner in which partition can be had is by applying to the Courts, and on proper consideration the distribution of expense will be found advisable.
Mr. VOYLES favored the bill. He thought the clause proportioning attorneys' expense pro rata was a good one.
Mr. SPANN opposed the clause to repeal the act of March 5, 1859. The bill is too sweeping in striking down a law that has stood for twenty-two years. By this bill the widow is left on the same plane with every heir or tenant, whereas the sacred traditions, hanging around the old homestead should be respected. Sons-in-law page: 152[View Page 152] may take umbrage at the widow and oust her from the homestead to advance their own ends.
Mr. BROWN reminded the Senator that the act of 1859 was only advisory.
Mr. SPANN insisted that it has been looked upon as directory in general practice.
Mr. HENRY referred to some points against the bill, notably the provision concerning the taxation of attorneys' fees. He was not pleased with the wording of the first section, and doubted if it will give satisfaction to the people generally if passed into an act.
Mr. MENZIES replied to objections to the bill. Administrators have been trea ed as tenants in common since 1875, and this bill does not change the practice under that act. He moved the bill be recommitted to the Committee on Revision, with instructions to consider the provisions with reference to widows, attorneys' fees and administrators.
The motion was agreed to.
