11 Ky.L.Rptr. 966
Court of Appeals of Kentucky.
April 15, 1890.
ACTION: Affirmed

Appeal from court of common pleas, Knox county.
"Not to be officially reported."
Petition for partition by W. R. Ballinger against N. A. Chamberlain and others.
Judgment for petitioner, and defendants appeal.

In this case appellee filed his petition in the Knox county court for division of a tract of land which descended from his mother to himself and appellants, children of his deceased sister. Subsequently, by agreement of all parties, the action was transferred from the county court to the Knox court of common pleas, where the judgment appealed from was rendered. Subsection 1, � 499, Civil Code, provides: A person desiring a division of land held jointly with others may file, in either the circuit or county court of the county in which the land lies, a petition containing a description of the land, statement of the names of those interested, with prayer for division. And subsection 11 provides in express terms for removal of such action on motion of either party to the circuit court for trial. But it is urged as sufficient ground for reversal that the common pleas court, having no equitable jurisdiction, could not take cognizance nor render judgment in the case, because there was a previous verbal agreement between appellee and his sister, before she died, that the land was to be divided in a particular manner. Subsection 10 provides that an action for division of land between joint tenants shall be tried and decided as an ordinary action, but without the intervention of the jury; and it would thus seem clear the court trying this case had jurisdiction. It is true appellee set up in his petition the agreement between himself and sister, whereby she was permitted to erect valuable improvements upon a certain portion of the main tract, which she might and did use before death of their mother, with the understanding that they were not to be taken into account in the division when it was made. Appellee stated in the petition his willingness to abide by that agreement which appellants readily assented to because greatly to their advantage, and the division was accordingly made with reference to quantity and value, without at all estimating value of the improvements which were situated on the portion of the tract allotted to appellants. There was therefore no equitable issue involved in the case, and the common pleas court had jurisdiction.

There is nearly always discrepancy in testimony regarding value of property, and, while several witnesses testified the portion of land allotted to appellee was more valuable than that allotted to appellants, others testified to the contrary. But the report of commissioners selected for their intelligence and sworn to faithfully and impartially make division of land, and having their attention particularly and critically directed to the task, is always entitled to more weight than the opinions of witnesses, who often make mere cursory examination of the land, and sometimes are controlled by prejudice. And it is therefore proper to abide by such report unless the commissioners have made mistake in quantity, or decidedly erred in judgment.

We perceive no reason for disregarding the decision made by the commissioners, and the judgment must be affirmed.

Ky.App. 1890.
13 S.W. 429, 11 Ky.L.Rptr. 966


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