
    Jane E. Moore and others vs. Dr. L. Z. Williamson and others.
    
      Partition — Improvements—Practice.
    Where, in the partition of lands, the value of improvements is to be computed, the process is, to allow, not the cost of the improvements, but the value which they have imparted to the premises.
    A party dissatisfied with the rate at which land is recommended, by commis. sioners m partition, to be assigned to another, may always bring the property to a sale by making and securing a bid for a material advance in price over the value assessed by the commissioners.
    BEFORE DARGAN, OH., AT LANCASTER,
    JULY, 1858.
    John Stewart, who died in 1857, directed his lands, consisting of two separate tracts, one lying on Waxhaw, and the other on Cane Creek, and his personal estate, to he divided between his grand-son, John H. Steward, and his four daughters, one of whom was the defendant L. H. Williamson, wife of Dr. L. Z. Williamson. The Cane Creek tract of land had been in the possession of Dr. Williamson since the year 1S41, and he had put upon it a number of improvements. A dwelling house, built by him, was burnt in 1843, and he had shortly afterwards built another. This tract contained about two hundred and forty acres of land. In the will it was directed as follows :
    “Also the lands upon which Dr. Williamson resides are my own, and have not been advanced, but in adjusting the advancements, I do not desire that my daughter, Harriet, should account for the rent, on account of the improvements, unless Dr. Williamson insists the improvements are of more value than the rents; if so, the commissioners on the division, may value the improvements and likewise assess the rent, and then Dr. Williamson may make his election. If he elects to charge for the improvements, the rent must be assessed, and form a set oif to the improvements as far as it will go.”
    
      The bill was for partition of the whole estate. Dr. and Mrs. Williamson, in their answer, insisted that the value of all the improvements, put by Dr. Williamson, on the Cane Creek land, should be estimated; and they reserved the right to elect until said estimate, as well as the estimate of the value of the rents, should be made.
    At June sittings, 1857, it was, by consent, ordered that a writ of partition do issue, directing the commissioners therein to be named, to go upon the lands described in the bill as the lands on Cane Creek, and to partition and divide the same according to the directions contained in the last will of John Stewart, deceased, and considering the answer of the defendants, Leander Z. Williamson and wife, that they estimate the value of the rents of said lands since they have been in the possession of the said defendants, and also the value of the improvements thereof, which have been placed thereon by the said Leander Z. Williamson, and embody the same in their return to said writ.
    A writ of partition was issued, to which the commissioners made return, as follows:
    “In obedience to the said writ we went upon the lands on Cane Creek, and after looking over the same carefully have come to the conclusion that said lands could not be divided among the parties in interest by metes and bounds, without manifest injury to all the parties. We then appraised the' said lands as it now stands, at twelve dollars and fifty cents per acre, and recommend that the same be vested in Prudence Harriet Williamson, wife of Leander Z. Williamson, at the above named valuation. The reason we make this recommendation, is that the said Prudence Harriet Williamson was placed on these lands by her father, John Stewart, deceased, and that manifest injustice would be done Harriet, if this is not done, as the said Harriet would then be deprived'of a house to dwell in, and perhaps thereby be put \o great inconvenience and loss, and her husband, Leander Z. Williamson, is in very moderate circumstances.
    
      We then, as directed in the writ, valued the improvements thereon made by Leander Z. Williamson, and have valued the same in the aggregate at the sum of two thousand three hundred and twenty dollars, and we have assessed the rent of said lands since Leander Z. Williamson has resided on the same, at one thousand six hundred dollars. From this it appears that John Stewart (deceased,) owes Leander Z. Williamson a balance of seven hundred and twenty dollars.
    The plaintiffs excepted to the return,
    1. Because the commissioners recommend that the lands on Cane Creek sought to be partitioned, be vested in Prudence Harriet Williamson, one of the distributees, at an assessed valuation far below the true value of said land.
    
      2. Because the commissioners have assessed the value of the improvements placed on said lands by Leander Z. Williamson, at a sum far beyond the amount the same has been enhanced in value by said improvements.
    3. Because they have made the supposed cost of said improvements, the standard of the value thereof.
    4. Because having in fact ascertained the value of the lands, without the improvements, to be nine dollars per acre, they should have applied the value of the improvements at three 50 — 100 dollars per acre; twelve 50-100 dollars per acre being their valuation of the lands with the improvements.
    I hereby pledge myself that the lands referred to in the above exceptions, if exposed to public sale, shall bring five hundred dollars more than the valuation set thereon in the return of the commissioners, or that I will take said lands at such increased valuation.
    June 29th, 1858. J. T. K. BELK.
    The defendants, Williamson and wife, also excepted to the return.
    1. Because the commissioners, in valuing the improvements, made on the lands in the possession of Dr. Williamson, allowed him only for the buildings now on said lands, but made no allowance to him for a dwelling house erected thereon by L. Z. Williamson, and burned down in the life-time of the testator, John Stewart — in this it is submitted said Commissioners erred.
    From testimony taken before the Commissioner, it appeared that the Commissioners in partition had estimated the value of the land, without the improvements, at nine dollars per acre, and then had added thereto so much as they thought the improvements, in their present condition, had added to the value of the land, and had fixed that amount as the assessed value. In estimating the value of the improvements, they had been governed by the amount Dr. Williamson had expended in putting them on the land.
    The case came before his Honor Chancellor Dargan, on the return, the exceptions thereto and the testimony taken before the Commissioner. His Honor made the following order:
    On hearing the return of the Commissioners to the writ of partition, exceptions thereto, and argument of counsel in this cause, it is ordered that the plaintiffs’ exceptions be sustained, and that the exceptions of defendants, LeanderZ. Williamson and wife, be overruled.
    It is further ordered, that said return be re-committed to the Commissioners, with instructions, that in assessing the value of the improvements placed on the lands by the defendant, Leander Z. Williamson, they have reference alone to the enhancement in value of said lands, by such improvements, and not to the cost thereof.
    It is further ordered, that said lands, after having been duly advertised for at least twenty-one days, be sold by tl^e Commissioner on some convenient sale day to be selected by him, on a credit of one and two years ; the purchaser to give bond with sufficient surety for the payment of the purchase money, with interest from day of sale; and it is further ordered that the plaintiff, J. T. K. Belk, be held to a bid at said sale, for said lands, corresponding with the offer-made by him in connection with plaintiffs’ exceptions aforesaid.
    
      It is further ordered, that the defendants, L. Z. Williamson and wife, account for the value of the rent of said lands since testator’s death, and that the Commissioner report thereon; and it is further ordered, that possession of the aforesaid lands be withheld (under the terms to be made) from the purchaser, until the first day of January next.
    The defendants, Williamson and wife, appealed on the grounds:
    1. Because it is submitted the Chancellor erred in setting aside the return of the Commissioners appointed to assess the value of the improvements placed by L. Z. Williamson on the land in his possession; recommitting the same with instructions, that, in assessing the value of such improvements, they have reference alone to the enhancement in value of said lands by such improvements.
    2. Because the Chancellor overruled the exception to the Commissioners’ return on the part of L. Z. Williamson, and . held he was not entitled to be paid for a dwelling house erected by. him on the land in his possession, and burned down in the life-time of John Stewart, the testator. In this it is submitted he erred; and at all events, no rent should be charged against said L. Z. Williamson until after the term when said house was burned down.
    3. Because the Commissioners in their return to the writ of partition, assigned to the defendant, Prudence Harriet Williamson, the Cane Creek tract of land, and recommended that the same be vested in her at twelve dollars and fifty cents per acre; and his Honor, the Chancellor, ordered said return to be set aside and said tract of land to be exposed to public sale; when it is submitted, there was no valid objection to the return of the Commissioners, and the same should have been confirmed.
    ’Williams, for appellants.
    
      Moore, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

Nothing is better settled in our practice, (not only in cases of intestacy, but in cases under contract, as may be seen in the case of Stoney vs. Shultz,) than that where the value of improvements is to be computed in a division, the process is 'to allow not the cost of the improvements, but the value they impart to the premises. Whatever may be the rule in other States or countries, this is our rule; and may be traced back as far as 1832, if not to an earlier time. A rule to allow the cost of improvements would subject the owner of the premises to the want of judgment or economy of the improver, and’render him liable to be built out of his land,by the improvidence of his tenant.

It is equally a notorious practice in partition cases, that a party dissatisfied with the rate at which land is recommended to be assigned to another party, may shake the proposed assignment, and bring the property to a sale by making and securing a bid for a material advance in price over the value assessed by the Commissioners. The Court would not attend to an insignificant advance, (since such a practice would tend to hang up causes indefinitely, without sensibly promoting the justice of cases,) but wherever the advance is for the substantial benefit of all the parties interested in the partition, the Court is bound to attend to it.

It is ordered that the appeal be overruled, and the decree confirmed.

Dunkin and Wardlaw, CC., concurred.

Appeal dismissed.  