Turner v Morgan, 32 E.R.
307 (1803)
*307 Turner v. Morgan
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Ct of Chancery
8 February 1803
(1803) 8 Vesey Junior 143
32 E.R. 307
1803
Analysis
Jan. 27 th , 28 th, Feb. 8 th , 1803.
[See Ames v. Comyns , 1867, 17 L. T. 163; Mayfair
Property Company v. Johnston , [1894] 1 Ch. 511, 514;
Hill v. Hickin , [1897] 2 Ch. 581.]
A Commission for Partition of a house decreed.
The bill prayed Partition of a house at Portsmouth , and
an account of the rent, under the following
circumstances.
The house was devised to three persons; equally to be
divided. The Plaintiff purchased two-thirds. The
Defendant was tenant of the house at a rent of £22
a-year; and refusing to raise the rent, the Plaintiff in
1799 brought an ejectment for two-thirds; the other
tenant in common refusing to join. That ejectment was
defeated; the Defendant purchasing the remaining third;
upon which the bill was filed.
[144] Mr. Romilly and Mr. Wear , for the Plaintiff,
relied on the passage in Lord Clarendon v. Hornby (1
P. Will. 446), that if there is but one house, or mill, or
advowson, the entire thing must be divided; observing,
that the Plaintiff offered by his bill either to buy or sell;
and that under the circumstances there must be a
partition of the house.
Mr. Mansfield and Mr. Thomson , for the Defendant.
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In Lord Clarendon v. Hornby the Lord Chancellor
ought to have mentioned, how the partition should be
made. It is observed in that case, that it would ruin the
property; and it was held, that, if the case admitted
compensation, all, that could be insisted upon, was the
fair value. The offer in the bill to buy or sell at the same
price is specious: but the motive is equally bad. The
Plaintiff knew, *308 the Defendant, not long ago a
bankrupt, could not buy at that price; and he could not
sell the premises, where he had carried on his trade
many years.
Mr. Romilly , in Reply. A Court of Equity in granting a
Commission of Partition proceeds exactly upon the
same grounds as the writ; and the only sort of house,
that cannot be the subject of it, according to Lord Coke
( Co. Lit. 31 b , 32 a ) is a castle; being necessary for
defence of the realm. In the case of Benson , an
attorney at Cockermouth , there was an instance of a
partition of a house by actually building up a wall in
the middle. In Parker v. Gerard ( Amb. 236. Agar v.
Fairfax , 17 Ves. 533) it was held, that a decree for a
partition is matter of right; and cases of great
inconvenience are there cited: particularly one, where
the Defendant would rather have given up his share: yet
a partition was decreed, and at their joint expence.
The Lord Chancellor [Eldon]. There is no doubt, what I
shall finally do in this cause. [145] But I will give the
Defendant time to come into terms. If it is of
consequence to him to retain the possession, the worst
thing for him will be a decree: for I must turn him out
of possession. This would be a fair proposition: a
reference as to the value, and to which party the option
of buying or selling should be given. It is of great value
to both parties: to the Defendant as a shopkeeper; and
to the Plaintiff as contiguous to other estates. Out of
mercy to the parties I will let it stand over: but I have
no doubt what is to be done, if they will have a decree.
Feb. 8 th . The Lord Chancellor [Eldon]. It cannot be
denied, that a partition is due now under the Statute, to
divide this species of inheritance; and I know no rule,
but by considering the Commission as due in a case,
where the writ would lie. The law says, there is no
inconvenience in the partition of a house; as in the case
of dower. The difficulty is no objection in this Court.
(See 15 Ves. 14, Waters v. Taylor. Adley v. The
Whitstable Company , 17 Ves. 315.) That is laid down
in Parker v. Gerard , and appears more strongly in
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Turner v Morgan, 32 E.R. 307 (1803)

Warner v. Baynes ( Amb. 589); where there was almost justice will be answered by inquiring, what would have
insuperable difficulty. I am therefore of opinion, that, if been a reasonable rent for these premises in each and
the parties insist upon having the law take its course, every year, for which the account is sought by the bill.
the Commission may proceed. 1

As to the account, there is a possible distinction

between the time, during which the Defendant was
tenant, and since he became owner of one-third. But

Footnotes

1
The Commission having been executed, an exception was taken by the Defendant, on the ground, that the
Commissioners allotted to the Plaintiff the whole stack of chimneys, all the fire-places, the only staircase in the
house, and all the conveniences in the yard. After Trinity Term, 1st August 1807, the Lord Chancellor over-ruled the
exception; saying, he did not know how to make a better partition for these parties; that he granted the
Commission with great reluctance; but was bound by authority; and it must be a strong case to induce the Court to
interpose: as the parties ought to agree to buy and sell.

32 E.R. 307
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© 2021 Thomson Reuters. No claim to original U.S. Government Works. 2