Dickson v. Dickson

DisseNting Opinion. Manning, J. I fully concur in the dissenting opinion of Mr. Justice Fenner, but even if I did not agree with him'upon the law as stated by him as a general proposition, I should still join him in dissenting, because I think it has already been announced as tlio law of this particular case. This identical partition suit was before this Court in 1881, and a decree was sent down, so minute in its directions that it covers two printed pages of the Report. Dickson Case, 83 Ann. 1378-9. The lower court obeyed the instructions from here, and this appeal is from its judgment, *464 rendered in conformity to them, and in execution of the law governing partitions, thus distinctly enunciated to the judge below for his guidance in the further progress of the suit. The majority opinion holds that the plaintiff was not a party to the suit, when it was here before, in her capacity of mortgagee, although she was a party to it in another capacity,but the opinion then rendered dealt with the whole question, as is manifest from the quotation from it incorporated in Justice Fenner’s dissent just read, which announced that under the circumstances, that had already been amply set forth, the mortgage given by the defendant Hannah could not affect her obligation to account to her copartners, and could not prejudice the rights of the heirs to have their interests satisfied and therefore those mortgages did not figure as factors in the partition. Now comes one of the parties to that suit, alheit not then claiming as mortgagee, and insists that her mortgage shall figure as a very important factor in that partition, and her claim is allowed and enforced. I cannot approve it.