McCamman v. Davis

Brooke, J.

(after stating the facts). It is urged by complainants that the court had no authority, under the proofs in this record, to do anything but decree a sale of *438 tñe parcel en masse. It is to be noted that the record is barren of testimony to the effect that a sale, as ordered by paragraph 7 of the decree, will or may produce more than a sale of the whole parcel en bloc; indeed, the only testimony in the case is that given by the complainants, who swear that, in their opinion, the property will bring a higher figure, if offered as one parcel. If the contention of defendant Davis, that the property will sell better in three parcels than in one, is well founded, it certainly should have been easy for him to have produced evidence to that effect for the guidance of the court. This he did not do. He even refrained from going upon the stand himself, and placing his opinion upon record, as to the best method of sale. It may be that he relied upon the knowledge of the court as to the situation. It is elementary that the court must base its decree upon testimony given in open court. Knowledge gained by a view of the premises might, with propriety, be used to determine which of two methods of sale should be adopted, where both are supported by proofs; but such knowledge cannot alone be made the basis of a decree. The primary object in a partition sale is, of course, to obtain the highest possible sum for distribution, and there is no doubt of the authority of the court to subdivide a single parcel for the purposes of such sale, if convinced upon a proper showing that such course would produce a higher figure than a sale in a single parcel; but, as we have pointed out, no such showing was made, and there was therefore no basis for the decree entered.

Should complainants have been reimbursed, from the proceeds of the sale, the expense incurred in buying in the tax titles and procuring an abstract ? It is clear that the former owners of the tax titles, their claims to title being adverse, were not proper parties defendant in this proceeding. Summers v. Bromley, 28 Mich. 125 ; Wilkinson v. Green, 34 Mich. 221 ; Bell v. Pate, 47 Mich. 468 ( 11 N. W. 275 ); Hayward v. Kinney, 84 Mich. 591 ( 48 N. W. 170 ). Defendant Davis, at the time he filed his *439 plea, evidently considered these outstanding titles such a cloud upon the title held by himself and complainants as to warrant their removal. To have filed a bill for this purpose, even supposing the absolute invalidity of the claims, would probably have involved the expenditure of a larger sum than was paid by complainants in purchasing the titles. Complainants apparently acted in good faith and for the purpose of clearing the title, in order that prospective bidders at the sale might not be deterred from offering the full value of the property. In an equitable proceeding, in the absence of any indication of bad faith, we can see no reason for denying complainants reimbursement for this item as well as for the abstract. Both were made for the benefit of the estate, and both were, in our opinion, necessary to insure a sale at the best price obtainable.

A decree will be entered providing for the sale of the premises in a single parcel, and providing, further, for the payment, from the fund, of the sums expended by complainants, above referred to. In other respects, the decree is affirmed, with costs to appellants.

Bird, C. J., and McAlvay, Blair, and Stone, JJ., concurred.