
    KERR v. HOOKS, ET AL.
    Partition — report excepted to — set aside.
    Partition under the act of 1831 for the partition of real estate, should either be made by setting oil to the demandant his portion, and leaving the residue an entire tract for the other tenants, or by apportioning to each his proportion.
    A report setting oil to the demandant his part and leaving the residue divided into several parts, will, if excepted to,.be set aside.
    Bill in chancery for partition of a tract of three hundred and sixty acres of land. The complainant claims an undivided third part. A decretal order was heretofore made to set off the complainant’s part according to the statute. The report of partition is now made, which is excepted to.
    
      G. Collings for the exceptions.
    
      Liggett contra.
   WRIGHT, J.

This case was brought here from the county of Brown, under advisement. The report excepted to, sets off to the complainant one hundred and ten acres, so laid off that the residue is separated into four tracts, of four, twenty-six, eighty-nine, and one hundred and sixteen acres, three of which are altogether cut off from connection with each other, and the other is separated into two parts by a ravine. The annexed diagram shows something like the partition.

The question is can such a partition be sustained ? The act referred to in the decretal order, requires the sheriff to set off to the defendant, or each party in interest, such portion of said estate as the court shall order: (29 O. L. 255) or if the estate will not divide, then, to return’ an ^appraisement in order to a sale. This estate of three hun- [610 dred and sixty acres, was either to be divided into two parts, one-third to complainants and two-thirds in a tract undivided for the other four heirs, or into five parts, one hundred and twenty acres to the complainant, and sixty acres to each of the other heirs. Such is not the division, and no reason is reported for making one so obviously unjust as that returned.

The exceptions are allowed. The entry is to be certified to Brown county.  