
    LEANDER S. GASH vs. RICHARD LEDBETTER & AL.
    After there has been a judgment at law, at the instance of some tenants in common, for an actual partition of land, the other tenants or any of them may have an injunction against the judgment, upon the allegation, that the land cannot be actually divided withuot injury to the owners, and the injunction will be continued until the hearing, that the Court may decide, upon the proofs, whether an actual partition or a sale of the premises will he most for the interest of the parties.
    Appeal from an interlocutory order of the Court of Equity of Henderson County, at the Spring Term 1.849, dissolving an injunction theretofore granted, his Honor Judge Bailey presiding.
    
      Isaac Ledbetter died intestate in 1836, siezed in fee of three tracts of land in Henderson County, one of which contained 883 acres, another 202 acres and the third 175 acres. The first tract is represented m the bill to have 500 acres suited for cultivation, of which 200 acres are. good productive bottom, and to have been assessed in 1847 as of the value of $2900; the second to have 100 acres fit for cultivation, and to have been assessed at $200, and the third to be nearly all fit for cultivation and assessed at $300. The intestate left fifteen children, to whom the land descended, who were then .nearly all infants, and of whom six are still infants. From those, who came of age, the plaintiff purchased shaves, which amounted to one sixth part of the whole, and the defendant, Richard Ledbetter, in like manner, became entitled to another sixth part. In the spring of 1818, Richard Ledbetter, and the other heirs, (who, including the infants, were entitled to ten fifteenths of the land,) filed a petition in the Superior Court of law against Gash, for partition of the three tracts, which he opposed on the ground, that actual partition could not be made without injury to him and the infant proprietors, and that he intended to apply to the Court of Equity for a sale for the purpose of partition. But the Court decreed partition specifically, arid then Gash filed the present bill against Richard Ledbetter and the other tenants in common, in which the lands are described,and it is alleged, that, from thequantity cleared, and fit for cultivation, and the deficiency and situation of the timber, and the number of shares, actual partition cannot be made without greatly impairing the value of the shares ; and that the land can be sold, upon a reasonable credit at a fair price ; and the prayer is, that it maybe ascertained, whether the interests of the owners would not be profited by a sale of the land, and, if it should be so found, that a sale may be had under a decree of the Court, and that in the mean time the defendants be in* joined from proceeding further under the judgment for partition in the suit at lawn The injunction wras granted as prayed.
    The answer states that the defendants prefer an actual partition, as land is increasing in value in Henderson County, and each of the defendants wishes to retain his or her shares in the inheritance derived from their father, and that, in their opinion, the partition may be made, so as to assign, to the several parties entitled, shares of the land specifically, of values equal to their shares in the value of all the lands descended ; and therefore the defendants insist, that a sale ought not to be ordered, and that they have the right to proceed to a partition under the judgment at law.
    On the coming in of the answer, the defendants moved to dissolve the injunction, w'hich was allowed with costs ; and the plaintiff appealed.
    
      N. W. Woodfin, for the plaintiff.
    
      Baxter, for the defendants.
   Ruffin, C. J.

As the Statutes confer on the Courts of law the same jurisdiction to make actual partition, which was possessed by the Court of Equity originally, a bill would not be entertained, which sought merely to transfer a partition cause from a Court of law to this Court. But, besides the jurisdiction to decree specific partition, the Court of Equity has, by the act of 1812, an authority, at the instance of any party interested, to order a sale of the property for division, if the Court shall find that actual partition cannot be made without injury to some of the parties. That jurisdiction is exclusive in the Court of Equity, and it necessarily gives rise to a power in that Court, to restrain some of the parties from applying to a Court of law for actual partition, to which at law they have an absolute right. For while one of the parties has the right to ask in either Court for actual partition, the other has an equal right to ask the Court of Equity for a partition by a sale, and division of the proceeds; and whether the case be a proper one for a sale, within the purview of the statute, must, in the nature of things, be determined, before a decree ought to be made for the partition in one way or the other ; since, by making actual partition, the Court would be precluded from subsequently ordering a sale, however clear it might appear upon the hearing, that there ought to be one. That would be the course, were a bill filed here in the first instance for partition, either actual or by sale, as the Court should deem best. The same result must follow upon the bill before us. As there was already a proceeding at law for actual partition, the plaintiff does not ask a partition of that kind in this suit; he being content, if such a partition is to be made at all, that it should be adjudged by the Court of law and made in the mode prescribed in the statute. But he says he is entitled to a relief by a sale of the premises, which the Court of law cannot administer to him, and the Court of Equity alone can ; and the sole object of the bill is to obtain that relief. It prays nolhing else ; and, unless the Court should give him that decree, his bill must be dismissed. The object of the suit, therefore, is to assert a pure equity, and one which is not denied, but arises out of the statute in every case, where real estate is to be divided. Whether this particular case be, in its circumstances, fit for a sale to be decreed, must depend upon the allegations of the bill and the proofs on the hearing. It is the question in the cause, and cannot, at least as a general rule, be decided upon motions to continue or dissolve an injunction. We will not say, it cannot appear so clear on the pleadings and exhibits, that there cannot ultimately be a decree for a sale, as to lay it down positively, that, in no instance whatever, ought the Court to allow the parties to go on at law' before the hearing of the cause in equity. But if there be such an instance, it is only where it is manifest upon the record, that the Court will feel obliged, in the progress of the cause, to deny the prayer for a sale. In the present case the facts are such as to render it, to say the least, not improbable, that the plaintiff may, upon the proofs, entitle himself to the decree he asks ; and, certainly, it would be premature, upon the answer alone, to allow the defendant, to have actual partition, and thus incidentally defeat this suit altogether, although upon the hearing, the plaintiff may be able to establish a complete case. Each party has an undoubted right to sever the common property, and the only question is as to the mode of doing it. That, which the plaintiff prefers, he can entitle himself to, only by showing, at the hearing, that he would suffer injury without it, while it would do no injustice to the others, and if he should not succeed in obtaining it, the other must follow of course. The defendants are therefore in no event to be injured, and the utmost inconvenience to them is that of the short delay, which may occur in a cause of this sort, when all the parties are desirous of getting their respective shares in severalty, in the one way or the other. That inconvenience is not comparable to the mischief, that may. arise to the plaintiff, by having the land laid off by a judgment at law into fifteen worthless strips presently, which he would in vain seek to remedy, however clearly he might subsequently show, that it ought not to have been done. He came here in apt time to avoid that, and we hold that it was erroneous to expose him to the risk of that irremediable injury, until it be definitely determined whether or not he is entitled to the equitable relief of a sale, w'hich can only be when the cause is heard. Wherefore the decree must be reversed, and the motion to dissolve the injunction overruled. The defendants, except the infants, must pay the costs of this suit.

Per Curiam.

Ordered to be certified accordingly.  