A bankrupt, at the time of her adjudication as such, was a tenant in common with her brothers and sisters of a parcel of real estate. The appellants here are the trustees in bankruptcy. They filed a bill in the court below alleging that on February 5th, 1930, Maude E. Brickell was adjudicated a bankrupt, — that on said date she was seized of a 6/15 interest in certain property described in the bill of complaint as tenant in common with her brothers and sisters, the defendants in the court below, who each owned an undivided interest in said property. Partition was prayed for, but the Circuit Judge dismissed the bill after sustaining demurrers thereto. The appeal is from the decree of dismissal.
The bill of complaint contains allegations to the effect that the other tenants in common with the bankrupt were hostile and bitter toward the trustees in bankruptcy who represent the creditors of Maude E. Brickell, but no overt acts of hostility are disclosed or clearly shown to be in contemplation of the defendants.
In the center of the property sought to be partitioned there is located a family cemetery or burial ground of the Brickell family, because of which, it is averred an undivided interest in the property is not readily saleable, or *Page 674 if saleable, that the sale would have to be made at a great sacrifice to the creditors of the bankrupt.
To support this conclusion of unsaleability as an undivided interest, it is charged that the co-tenants of the bankrupt will do all in their power to discourage the sale of the bankrupt's undivided interest, if sold that way, and to prevent such interest bringing an adequate price. Corroborative of this allegation is the averment that although the property is of the reasonable value of $120,000.00 that the bankrupt has scheduled her interest therein as of no value, and that the co-tenants will throw every legal obstacle in the way of recovery of possession, or partition of said property by any purchaser of an undivided interest therein; that all of the aforesaid facts are well known to the investing public and to those who might be interested in making a purchase of the bankrupt's interests in the property.
The bill discloses the fact that the trustees in bankruptcy have filed their petition with the referee setting forth the facts hereinbefore referred to, and that an order has been entered in the bankrupt court to the effect that it is necessary to protect the rights of the trustees and of the creditors, to partition the lands in which the bankrupt has an undivided interest before selling the interest of the bankrupt therein. It is alleged that the bill for partition is accordingly brought by the trustees in bankruptcy under the approval and by the direction of the bankrupt court.
In Hobbs v. Frazier, 56 Fla. 796, 47 Sou. Rep. 929, it was held by this court that the bankruptcy law does not expressly authorize partition proceedings by the trustees in bankruptcy. It was further held in that case that inasmuch as it was not shown by the pleadings that a partition proceeding was essential to the performance of the statutory duties of a trustee in bankruptcy under the circumstances there involved, and because it was not *Page 675 shown that any duty to seek partition had been imposed upon the trustee in that case to seek partition, that the statutes of this State relating to that subject should not be unreasonably extended to cover trustees in bankruptcy who have bare legal title, but only special statutory duties to perform in connection with such title; who likewise have no beneficial interest in the estate of the bankrupt and where there is no allegation that partition is necessary to fully protect the rights of those interested in the estate of the bankrupt.
The case of Hobbs v. Frazier, supra, is reported in 16 Am. Eng. Ann. Cases, 558, and in a note to the case there annotated and reported, the annotator on page 560, in commenting on and construing the holding in that case, says:
"The reported case appears to be the only decision upon the right of a trustee in bankruptcy, appointed by virtue of the Federal bankruptcy act to sue for a partition of property belonging to the bankrupt. The rule therein laid down is that as a trustee in bankruptcy is not expressly authorized by the act to sue for a partition of property belonging to the bankrupt, he cannot bring such an action where no order of the bankruptcy court has been obtained authorizing and directing the bringing of the action, or where it does not appear that such a proceeding is essential to the statutory duties of the trustee, as for the protection of the rights of those interested in the estate of the bankrupt. The decision of the reported case apparently leaves open the question whether such an action may be maintained where one or more of the above facts exist."
The question now presented is whether or not the appellants, as trustees in bankruptcy, by procuring an order from the bankrupt court directing them to seek partition of the bankrupt's interest, and by alleging that because of the attitude of the co-tenants the undivided interest of the bankrupt will not bring an adequate price, have demonstrated a right to maintain their suit for partition in the *Page 676 instant case, the question here raised being left open by the previous decision of this court just referred to.
A majority of the court are of the opinion that no such case has been made out.
The trustee in bankruptcy may, according to the law on the subject, sell the undivided interest of the bankrupt in the land, and convey such interest to the purchaser, who thus may become a tenant in common with the owners of the other interests, and who after he become such, can seek his own partition in the courts or voluntarily agree to a division without legal proceedings.
Whatever may be the rights of a trustee in bankruptcy to seek a partition of real estate under the present laws of this State under any circumstances, it is clear that the allegations of complainants' bill do not make out a case showing that partition is "necessary to fully protect the rights of those interested in the estate of the bankrupt." Hobbs v. Frazier,supra.
Whatever is necessary to fully protect the rights of those interested in the estate of the bankrupt is not concluded by the adjudication of the bankrupt court that the trustees in bankruptcy will get more money for the bankrupt's interest if it is partitioned than they will if the interest is sold as an undivided one. It may be readily conceded that in any case a threat of partition with its attendant costs would make thenuisance value of the bankrupt's undivided interest materially rise in value from the standpoint of what might be realized from its forced sale, regardless of what it might be worth otherwise. The rights only of the creditors, represented by the trustees, would be subject to protection by partition, if partition is necessary for such protection under the rule referred to in our previous decision.
But the right of "protection" thus afforded cannot be enlarged into a right to interfere with and disturb the possession and enjoyment of the property by the other *Page 677 tenants in common, merely because by so doing more returns will be realized for the benefit of the creditors of the bankrupt at the expense of the bankrupt's innocent co-tenants, than would be realized by selling the undivided interest without partition.
There is nothing in the present case to show that if partition is not shortly had a loss to the whole estate by waste or otherwise will be sustained or that a greater burden will be cast upon the trustees in bankruptcy in holding the property pending its sale, than would otherwise be the result, such as would be caused by the nonpayment of taxes assessed against the lands as a whole, thereby forcing all of such taxes to be paid by the trustees in bankruptcy in order to protect the ownership as a whole, instead of paying a proportionate part to protect the bankrupt's interest only, nor is there shown any other similar circumstances evidencing an absolute necessity for partition as a means of protection.
So without finally foreclosing our views on the question of whether or not there are any circumstances under which a trustee in bankruptcy can maintain a partition suit against co-tenants of the bankrupt, a majority of this Court hold the bill of complaint in the present case not to have been sufficient to show a right of partition as against the defendants who objected to it by their demurrer. And so holding we must affirm the decree of the court below, which, after sustaining the defendants' demurrers, dismissed the bill.
Decree affirmed.
WHITFIELD, ELLIS. TERRELL, BROWN AND DAVIS, J.J., concur.
BUFORD, C.J., dissents.