delivered the opinion of the Court:
Conceding that it is competent, as a majority of the court do, on the authority of Howey v. Goings, 13 Ill. 95, Dean et al. v. O’Meara et al. 47 id. 120, Wilton v. Tazwell, 86 id. 29, Labadie v. Hewitt, 85 id. 341, Hill v. Reno, 112 id. 154, and Gooter v. Dearborn, 115 id. 509, for a court of equity to decree the payment of a sum as owelty, to equalize the shares on partition of real estate, we can not consent to recognize that such a court can cause expensive improvements to be made upon property, preliminary to a partition, through its master in chancery, against the protest of one of the owners of the property. This decree not only directs the payment of $4000 as owelty, after the partition,—it decrees that the master shall, before the partition, let a contract for certain improvements to be made, under the direction of the chancellor, to the amount of $3750, unless he can obtain a contract at a lower amount. If the evidence can fairly be said to preponderate at all in favor of the expediency of the improvements proposed to be thus made, it is only barely so. A number of intelligent witnesses, including the defendant, express an opinion to the contrary.
Undoubtedly, the principle is well recognized that under some circumstances, as, where property is in -the hands of a *352receiver, a court of equity will direct the receiver to make repairs for the preservation of the property, and in extreme instances, where the interests of all parties unquestionably require it, it may be that it will direct him to make improvements for the more available and profitable employment and use of the property; but this is justifiable alone by the necessity of the situation. The principle is extremely dangerous, as tending to subvert the rights of private property, and it ought not to be tolerated beyond the limits of absolute necessity. It does not comport with the rights of ownership, or the fundamental principles of personal liberty, that the owner shall be compelled to pay for improving property which his judgment or inclination does not urge him to improve, although all of his neighbors shall unite in opinion that the improvement will be advantageous to him. If the power exists, its limits must, to a large extent, rest in the discretion of the chancellor. The principle that authorizes these improvements will sanction other improvements of a different character, and larger in amount, and thus an owner might be improved into bankruptcy and out of his property. The co-owner may, perhaps rightfully, insist that the other shall contribute for the preservation of joint property, but he certainly, upon no correct principle, can insist that he shall enter upon new investments, to be paid for from the joint property or out of other funds belonging to him, against his judgment and inclination.
• None of the cases referred to by counsel for appellee go to the extent of this decree in this respect. In Smith v. Smith, 10 Paige, 470, a sale had been ordered. The court held, that under the evidence the property was susceptible of division, and in the opinion various ways of dividing the water power are pointed out. No improvements were undertaken by the chancellor. In Lister v. Lister, 3 Young & Collier, 540, a motion was made that the return of the commissioners might be suppressed upon the ground, among others, that it directed the parties to make fences at their own expense. The motion *353was overruled. The court itself did not undertake to make any improvements, nor did it hear evidence and determine that improvements should be made, but.confirmed merely the action of its commissioners in determining that the parties themselves should make fences to-protect their premises. The concluding language of Aldebson, B., is: “The object of the partition is, that each may enjoy in severalty, and it seems to me that a direction to each to erect a fence, to prevent the intrusion of his neighbor’s cattle, is quite reasonable, and is, in truth, necessary to enable each to enjoy the land in severalty. ” So the decree was only that the parties themselves should do that which their interests would doubtless have prompted them to do without any decree. Cooper v. Ceclar Rapids Water Power, 42 Iowa, 398, was like Smith v. Smith, supra. The court ordered no improvements to be made under its supervision, but simply declared the mode by which the water power should be divided. In First National Bank of Ottumwa v. Taylor, 44 Iowa, 343, the only controversy about the building of the partition wall was, whether it should be extended above the roof. There is no decision or discussion of the right of a court of chancery, by virtue of its powers as such, to make improvements, in case of partition, without the consent of one of the parties.
These are the only cases cited in support of the action of the circuit court, and we are aware of none going any further in that direction.
We are of opinion that the decree below can not be sustained. It will therefore be reversed, and the cause remanded for further proceedings consistent with the views herein expressed.
-r. , Decree reversed.
Separate opinion by Mr. Chief Justice Scott :
I concur in the decision rendered in this case, and also in some of the views expressed by Mr. Justice Scholfield ; but as there are other considerations that I think better sustain *354the decision, I can not forbear stating some of them. The question of most importance is as to the jurisdiction of the court to render the decree it did. In its decision it seems quite clear the court traveled-out of its jurisdiction as limited by the statutes of this State, whatever, may have been the power of a court of chancery in England in matters of partition. The forms adopted in proceedings in partition of estates in chancery, in England, have never been adopted or followed in this State. Indeed, it would seem to be impracticable to do so. In most of the American States the mode of making partition has been regulated, in a large measure, by statutes. As will be seen further on, it has always been done under enabling statutes in this State.. .
The absurdity of claiming to make partition of estates in this State as was once done in England, in courts of chancery, will be apparent by ascertaining, as near as may b'e:, what the practice was. Mr. Daniell, in his work on Chancery Practice, says, in case ,of partition of an estate by courts of chancery, in England, if the titles of the parties were in any degree. complicated, the difficulties which had occurred in the proceedings at law led to applications to courts of equity for partitions, which were effected by first ascertaining the rights of the several persons interested, and then issuing a commission to make the partition required, and upon the return of the commission, and the confirmation of that return by the court, partition was finally completed by mutual conveyances of the allotment to the several parties. Where the title of the parties was clear on the record, it seems the court would, at the original hearing, order a commission of partition to issue, in the first instance, without any previous reference to the master. The author says the commissioners acted as a court. The parties or their solicitors were permitted to attend, and were permitted to produce their deeds and other evidence, as well written as oral, and to point out anything that might tend to give the commissioners full information on *355the subject, and to take every step necessary to discover the truth, and to enable the commissioners to make a proper return. The duties of the commissioners were definitely pointed out. They were directed to “go to, enter upon and walk over the estate” to be partitioned. They were required to look into the bill and the answer, an(l, the pleadings were made their guide as to the estate to be divided, and the manner in which it was to be done. Having in that way ascertained what estate was to be divided, they were next to make a “fair partition, division and allotment thereof into as many shares and proportions as the decree directs should be done. ” It seems the parties themselves were permitted to name the commissioners, and they were therefore regarded as “judges of their own choice, ” and it was for that reason it was said the principles applicable to arbitration were applicable to them. But for any gross error of judgment, however, the court would set aside their adjudication. It was not necessary, in making partition in chancery, every part of the estate should be divided. It was sufficient if each party had allotted to him his proper share of the whole. All the forms to be observed, and the manner of making the allotments after a division was agreed upon, are fully stated by Mr. Daniell in his work on Chancery Practice, in the section on “ Partition. ” 2 Daniell’s Ch. Prac. (1st Am. ed.) p. 1326. In some cases it was found it was impracticable to divide the property in equal shares, quantity and quality considered, and the practice was adopted at an early day of making a money compensation to the party receiving the least valuable parcel, by way of securing equality of partition. The practice, perhaps," at first pertained to the division of estates between co-partners, and afterwards it seems to have been extended, by statute, to the partition of estates between joint tenants and tenants in common. It is most probable, the practice had its origin in the necessity arising from the want of power in the courts to order a sale of property. A statement of this doctrine is found in the *356early case of Clarendon v. Hornby, .1 P. Wms. 447, where it is said: “If there were three houses of different values to be divided among three, it would not be right to divide every house, for .that would be to spoil every house; but some compensation is to be made, either by a sum of money, or rent, for owelty of partition, to those that have houses of less value.” This case, stated by the chancellor for the application of the rule, has been re-stated by most of the text writers on this subject, and is a case that illustrates the doctrine as well as any to'be found in the books.
It is needless to pursue this investigation further, or to inquire whether a sum of money or rent was awarded as for .owelty.of partition, under the practice that.once prevailed in chancery, in England, was made with or without the consent of the parties, or only in particular cases coming within á definite rule, as enough has been said to make it certain no such practice has ever prevailed in this State. In some of the American States owelty of partition is made by decreeing the payment of money to the party to whom the portion of the estate of least value is allotted, but in most, if not all, of the cases to which the attention of this court has been called, it was done either by consent of the parties capable of giving consent, or under the provisions of an enabling statute or code on the subject. That is so in the following cases: Smith v. Smith, 10 Paige, 447; Cox v. McMullan, 14 Gratt. 91; Darlington's Appropriation, 13 Pa. St. 430; Wood v. Little, 35 Maine, ,107; King v. Heed, 11 Gray, 490. A statute of Massachusetts provided, where, on petition for partition of lands, “any messuage, tract of land or other real estate, shall be of greater value than either party’s purpart or share in the estate to be divided, and can not, at.the same time, be subdivided, and part thereof assigned to one and part to another, without great inconvenience, the same may be settled or assigned to one "of the parties,— such party to whom the same shall be so assigned paying such sum or sums of money to such party or parties as, by means *357thereof, have less than their share of the real estate, as the committee appointed to make partition shall award.” And in Coclman v. Tinkham, 15 Pick. 364, it was held the statute was not applicable where there was but one parcel of land w'hich was held jointly, and for that reason approved the judgment of the court of common pleas, which rejected the report of commissioners, by which they assigned to one the whole of the estate because it could not be divided without detriment, and awarded to the other so much money for his share in the land to he divided. It was for the reason there was no statute that authorized it to be done, the court considered the disposition made of the land was not authorized by law. There is .not now and never .was any statute in this State that authorized the commissioners appointed to make a partition to give a sum of money to any one to whom a share less in value than he was in fact entitled to, by way of owelty of partition, and certainly it can not be done by the court, unless the court can exercise the same powers in that regard as may have been done at one time by courts of chancery in England.
If it should be conceded, which it is not, the courts of chancery in this State might properly exercise the same powers in such matters as the English courts of chancery once had, it • would be fatal to the present decree the court did not conform, in this case, to the practice in such courts, in any essential particular. No such formalities as the Eáglish courts observed were conformed to in this case, as is quite apparent from what has gone before. But the decision might be placed on the broader ground, courts of chancery in this State have no power to award a money compensation to secure owelty of partition. The whole matter of making partition in this State, as it is in most of the States, is regulated by statute, and the courts in such proceedings, whether at law or in chancery, .must conform to the mode provided by statute, and may not proceed otherwise. All the early statutes in this State, on this subject, had relation to, and were intended, no doubt, to regu*358late proceedings on petition for partition in the law courts, and it was evidently intended the method provided should take the place of the common law remedy by writ of partition. But it was not intended to confer on the law courts exclusive jurisdiction in that respect. As appears from numerous cases in this court, equity assumed to exercise jurisdiction in matters of partition concurrently with the courts of law. In the early case of Howey v. Goings, 13 Ill. 95, it was held the jurisdiction of courts of equity, in' matters of partition, was undoubted. .In many cases prior to the act of 1861, which enlarged the jurisdiction of the law courts in such matters, the interposition of courts of chancery was indispensable to adjust conflicting rights and to do complete justice between the parties. But it is .to be noted, courts of chancery, in cases in the mere matter of making partition of the estate, followed closely the statute, and no case is now recalled where there was any marked departure from the statutory mode. So closely did the courts of equity follow the statutory mode of making partition, it was said by this court in Nichols v. Mitchell, 70 Ill. 258, “the mode of procedure in either court is so nearly alike that some difficulty is experienced in determining which forum the party has selected, ” and it was held in this same case, the court would treat the proceeding as being at law, or in chancery, as best sustained the jurisdiction of the court making the order for partition. It was not a matter of any consequence whether the proceedings were at law or in chancery, for the mode of making partition in either court was practically the same. Often courts of equity granted relief as to other matters connected with the partition of estates, that court's of law had no jurisdiction -to do'. It was only in that way their proceedings in matters of partitions differed. Bach court may have followed its own peculiar rules of procedure, but the conclusion reached and the thing accomplished,—that is,the partition of the' estate,—were the same, no matter in which forum it was done. - .
*359The earliest act of the General Assembly of-this State, in relation to partition, was passed at its session in 1S19. That act provided that where the property was so circumstanced a division could not be made without great prejudice to the owners, and the commissioners appointed to make partition so reported, it was made the duty of the court to order its sale, and the proceeds were to be divided according to the interests of the respective parties. The act of 1827, for the speedy assignment of dower and partition of real estate, repealed the act of 1819, and provided that partition might be made by the circuit court, on petition. It was to be done by three commissioners appointed by the court. Section 2 of the act of February 20, 1819, was substantially reenacted as section 16 of the act of 1827, and provided where any lands, houses or lots are so circumstanced that a division thereof can not be made without manifest prejudice to the proprietors of the same, and the commissioners appointed by the court shall so report, the court shall thereupon give an order to the commissioners, or other person or persons, to sell such real property. It was made the imperative duty of the court, in all cases where the commissioners reported a division could not be made without manifest prejudice to the proprietors, to order a sale of the property. The substance of section 16 of the act of 1827, has been retained in all the revisions of the statute on the same subject, down to the present time. That section was almost, if not quite, literally transcribed into the revision of 1845. The same mode of procedure subsequent to the report of the commissioners against the divisibility of the property, is still provided for in the statute now in force in relation to partition. The present, as well as all former statutes of this State, provides, when the whole or any part of the premises sought to be partitioned can not be divided without manifest prejudice to the owners, and the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of division. *360to be sold. It will be noticed the language of the statute is, not that the court may order the sale of the property in such case, but that it shall do it. It is also to be noted the statute in force July, 1874, and under which the proceedings in this case were had, provided partition may be compelled by bill in chancery, as heretofore, or by petition in the circuit court. Of course, if the proceedings were on petition for partition in a court of law, no one would insist partition would be made otherwise than as the statute directs. But is not this statute as obligatory on courts of equity as upon the courts of law, in the mere matter of making partition? How was partition of estates heretofore compelled by bill in chancery ? The answer is obvious. It was done by following the mode provided by statute and not otherwise,—that is,' no matter whether the proceeding was in a court of chancery by bill, or in a court of law on petition,—the practice was from the first to appoint three commissioners to make partition of the estate among the owners, and in case the commissioners reported it' was impracticable to make such partition without manifest prejudice to the owners, the invariable practice was to follow the statute, and order a sale of -the property and divide the proceeds. The rule of procedure in this regard has been the same since the State government first went into effect, and it has not heretofore been departed from by any court, either of law or equity, in this State. It is absurd to be supposed that when the General Assembly declared partition might be compelled .by bill in chancery, as “heretofore, ” it was meant it might be done as was once the practice in English courts of chancery. No such practice heretofore existed in this State at any time. On the contrary, as has been seen, the practice has always been, whether the proceedings were in chancery or at law, to appoint commissioners, as the statute declares shall be done, to make partition, and on their report that partition could not be made without manifest prejudice to the owners, then to order a sale of the premises. The statute in that *361respect has heretofore been regarded as obligatory upon all courts having jurisdiction to order partition, and no reason is perceived why it does not control as to the method of making partition, to the exclusion of all other modes. And certainly, when the legislature provided partition might be compelled by “bill in chancery, as heretofore,” it was meant it should be done, as had been the invariable practice, in accordance with the statute. Any other construction would be most unreasonable.
Although this question has never before been presented to this court so distinctly, perhaps, as in this case, still the principle that must control-has been determined by the decision of this court in Gooch v. Green, 102 Ill. 507. The bill in that case was to impeach a- decree rendered in a proceeding to partition certain lands. Whether the proceedings in partition sought to be impeached were by bill in chancery or by petition at law, does not appear, but from the fact it is constantly referred to as a bill to impeach a decree for fraud, it might be fairly inferred the original proceeding was by bill in chancery. But how that may be, matters little. It was distinctly held by this court that where a decree for partition found six-sevenths of the land in one party and one-seventh in another, the commissioners appointed to divide the land had no authority to give one party more than his share, as found by the decree, and require him to pay therefor a certain sum of money to the party receiving less than his share of the property. This court placed its decision on the distinct ground the commissioners had no authority, under the statute, to make such division of the land. Had it been understood a court of chancery had authority in this State to render any such decree independently of the statute, as the English courts of chancery may have had, undoubtedly this court would have treated the original proceeding in partition as being in chancery, in order to sustain the jurisdiction of the court to pronounce the decree it did, as was said in Nichols v. Mitchell, *362 supra, would be the proper practice. But nothing of that kind was done, and it must have been determined neither a. court of law nor equity had any authority, by a statute or otherwise, in this State, to make any such division of the property. Many cogent reasons might be suggested as sustaining the correctness of the decision in Gooch v. Green, supra, were it necessary to do so. It will be remembered, from what has gone before, the General Assembly, at its first session under the first constitution of the State, made provisions for.the partition of estates, and since then the subject has often been before it. for legislation. - Had it been- expected courts ■ of equity would assume to order partition otherwise than as in the manner directed by statute, or had it been expected such courts would assume jurisdiction to award owelty of partition under what may have been supposed to be general chancery power, undoubtedly the manner of doing it would have been regulated by statute, as is done in many other States of the Union. But nothing of this kind has ever been done. Besides these considerations, a sale of the property where a division is found to be impracticable, accords best with "our sense of right and equality, and a"due regard for public convenience and the rights of owners.