Cubbage against Nesmith, 3 Watts 314

The opinion of the Court was delivered by Gibson, C. J. The naked question on this record is, whether a recognizance in the orphan’s court binds the whole estate, or only the undivided share of the child as it existed before it was vested in the cognizor by the decree of confirmation. The doubt was formerly the other way, whether it did not bind all the cognizor’s land taken at the valuation or acquired previously; and that doubt was not resolved till it was settled in Allen v.

Reesor, 16 Serg. & Rawle 10, that such recognizance binds no more than the land taken by the decree ; but the lien has not been thought capable of further restriction.

A child who has taken the estate at a valuation, is, as regards the land so taken, exactly in the situation of any other purchaser from tenants in common, against whom a judgment recovered by one of the tenants binds the whole estate: and why should not a recognizance 1 To sell but what was the undivided purparty of a child as an interest in common, would defeat the very purpose of partition by distribution of the value, and undo all that the orphan’s court had done.

When an estate is incapable of partition in kind, as this was found to be by the inquest, the purpose of vesting the whole in a child or a purchaser, and giving the other children their shares in money instead of land, is to preserve the land from destruction by division t but, according to the theory of the argument, it would have to be brought, if not to a partition in kind at last, yet at least to a partition at the common law, modified, as it is, by our statutes; in which the process, with its incidents of valuation, confirmation, lien, and sale of separate interests, might be repeated toties quoties.

For if the consolidated title of the children were again to be separated by successive sales of their respective shares, the purchasers would stand in relation to each other, as the children stood before the decree of confirmation ; a result certainly not contemplated by the legislature, who, in providing for partition in the orphan’s court by distribution of value, meant to do more than lay a foundation for an action of partition at .the common law.

But to lay all this out of view, as well as the costs that would be incurred, and the inconvenience that would be felt from consecutive sales of the separate shares, as the children should call for their money, it is evident that the title to a tract incapable of division, would sell to less advantage in parcels than in bulk. No one would purchase, except at an undervalue, an interest which might require a lawsuit to give him the separate ownership of it, or at last but a compensation for it in money.

It is therefore more beneficial for all parties in regard to the expense of the proceeding and the price to be obtained, as well as more consonant to analogy, to sell the whole together. We are therefore of opinion that the recognizance bound the entire title to the lot, and that the purchaser under it acquired an exclusive fee simple in the parcel in question. Judgment affirmed.