
    James A. Ross v. F. A. Ramsey et al.
    
    1. Sale op Land. Partition. A sale of land to? partition, is a matter of right, provided it shall appear to the Court that it cannot he equally divided among those entitled thereto, or that it would he manifestly for their interest that it should he sold.
    2. Same. Same. Pleading. Practice. In order to authorize a sale for partition, the bill must be framed with that view, and contain the proper averments. The case must, also, he made out by proof.
    8. Same. Disclaimer. Order pro confesso. If a bill is filed to divest title to land belonging to minors and adults, as tenants in common, and the adults enter a disclaimer in favor of the complainant, a decree divesting their title is proper, as they are sui juris, and hound by such disclaimer; but if one\>f the adults fails to defend, and an order pro confesso is entered against him — the bill showing upon its face that the complainant is not entitled to the relief he asks — a decree, founded alone upon such order, cannot be made divesting the title of such' adult.
    EROM KNOX.
    The lot mentioned in the pleadings belonged to Mrs. Margaret Ramsey. On the 8th day of March, 1841, she made a will, in wbicb she devised the tract of land to E. A. Ramsey. In 1847, the said Margaret Ramsey tore her name, and the names of the witnesses, from the will. After her death the instrument was found in that condition. The bill alleges that the names were not torn off with the intention of destroying the effect of said paper writing, as a devise of the lands mentioned therein. No effort was ever made to prove said paper as a will. In November, 1865, E. A. Ramsey sold and conveyed the lot to the complainant for the consideration of $4,000. The defendants are the heirs-at-law of Margaret Ramsey, some of whom are minors. The bill prays for a divestiture of the title to said lot out of the defendants; and that such a decree be pronounced in the cause as will perfect the complainant’s title. The Court pronounced a decree, Chancellor Lucky presiding, ordering a sale of the lot for partition. The complainant appealed.
    MaYNARD and WashbuRN, for the complainant.
    Cocke and RaMsey, for the defendants.
   Wright, J.,

delivered the opinion of the Court.

The decree in this case is erroneous. The object of the bill is to divest the title of the lot in dispute out of the ■ defendants, and to vest the same in complainant. It can be viewed in no other light. It is plain from the bill and the entire case that Margaret Ramsey died intestate, and that this lot descended to all her heirs, as tenants in common, and that her son, E. A. Ramsey, acquired no exclusive title, as her devisee, the will under which he claims having been cancelled by his mother in her lifetime.

Complainant, as purchaser of E. A. Ramsey, has title to the shares of James H. Cowan, Thos. W. Humes, Mary White, and Margaret White, they having disclaimed title in his favor and being sui juris. He has also E. A. Ramsey’s share by purchase. To this extent a decree to divest title would have been proper.

But as to the infant heirs of Elizabeth White and Andrew R. Humes, and also as to Cornelia, the wife of Charles M. McGee, Margaret, the wife of John 0. Greenway, and John N. Humes, complainant has no title. They all answer and insist upon their rights except John N. Humes, as to whom there is a pro eonfesso. And as the bill shows complainant has no title as to him, the pro eonfesso can avail nothing.

The only decree then proper in the case was a divestiture of title to the extent above stated. But this the Chancellor did not do; but proceeded to take proof and decree a sale for the purpose of partition, when the bill was not framed with any such view, and asked no such thing.

In the other aspect of the case, namely, a bill to sell the lot because it may be so situated that partition thereof cannot be made, or because it would be manifestly for the advantage of the parties, that it should be sold instead of partitioned, the bill makes no ;case. Without such a bill, with proper averments and proof, the decree cannot be sustained. What these are will be found under the head of partition, in the Code, articles five and seven, and need not here be enumerated.

A sale for partition is a matter of right, provided it shall appear to the Court that the property cannot be equally divided among those entitled thereto, or that it would be manifestly for their interest that it should be sold. Helm et al. v. Franklin et al., 5 Hum., 404. And it is more than probable, in this case, that proper grounds for a sale do exist; but they can only be made available by a bill framed with that view, with regular proceedings under it.

The decree of the Chancellor will be reversed, and the cause remanded to the Chancery Court at Knoxville, to the end that complainant, if he desires to do so, may amend his bill, and that the proper steps be taken and decrees had in conformity to this opinion.  