HILARY JEFFERSON vs. GEORGE D. FLYNN, JR.

WILKINS, C.J. This petition for partition alleges that the petitioner holds as tenant in common a 14/45ths "undivided part or share" of three lots in Edgartown, and lists thirteen other tenants in common holding various fractional interests, some very small. The petition prays that partition be made of all the land according to law; and that a commissioner be appointed to make such partition and to make sale and conveyance of all or any portion of the land which the court finds cannot be advantageously divided, either at private sale or public auction, and to distribute and pay over the net proceeds in such manner as to make the partition just and equal.

George D. Flynn, Jr., who was not named as a respondent in the petition, filed an answer in opposition alleging that he holds title to the premises and praying that his interest and title be determined.

There is nothing in the record nor on the docket to show what kind of a hearing, if any, was held. There is no report of material facts. An "interlocutory decree" (G. L. [Ter. Ed.] c. 241, Section 10) was entered which recited that all persons interested had been duly notified and that "the interests of all parties will be promoted by the sale of the 14/45ths interest claimed by the petitioner," and appointed a commissioner to whom it was ordered that there issue a warrant to sell and convey the 14/45ths interest at public auction for cash and to pay over the net proceeds to the petitioner. No reference to Flynn was made in the decree. The petitioner alone appealed.

So far as concerns the petitioner, this was a final decree. See Brown v. Bulkley, 11 Cush. 168; Wonson v. Wonson, 14 Allen 71, 81; Savery v. Taylor, 102 Mass. 509, 511. An appeal now lies.

The sole issue is whether the decree in the form made was beyond the power of the Probate Court. Apparently the judge was attempting to follow G. L. (Ter. Ed.) c. 241, Section 31, which reads in part, "In partition proceedings the

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court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal." Clough v. Cromwell, 250 Mass. 324, 331. Batchelder v. Munroe, 335 Mass. 216, 218. The decree, however, does not make partition but seeks to remove the petitioner, doubtless at a financial sacrifice, from ownership of his undivided interest in favor of whoever should buy it at auction. The brief for Flynn argues that the judge followed the mandate of Section 31, and must have found that "The whole or any part of the land . . . cannot be divided advantageously." Such a finding could not serve to enlarge the power of the court. "The primary method of partition is by division of the land itself by metes and bounds among the tenants in common." Mello v. Mello, 322 Mass. 68, 69. The decree as made merely enables changing the name of one of the owners. The land will continue to be owned in the same proportions as before the petition. The phrase "any part of the land" means a specific physical part, not any share or interest in an undivided fraction of the real estate. See Roberts v. Hagan, 121 Va. 573, 579-580.

It has not been, and could not soundly be, contended that the decree can be supported as falling within G. L. (Ter. Ed.) c. 241, Section 11, [Note 1] relating to a dispute as to the ownership of a share. Flynn asserted an ownership of the entire real estate, not to the undivided 14/45ths of the petitioner. The judge ordered the selling price at the auction sale to be paid entirely to the petitioner. The factual basis of Section 11 was not found to exist.

Decree reversed.