¶1delivered the opinion of this court.
¶2The proceedings in this case, shew that it is a controversy between the heirs at law of Thomas Stallings, who died intestate, in relation to the sale or division of his real estate. The bill is filed by the one of the heirs claiming a sale, upon the ground, that the land is not capable of division; and resisted for the reason, amongst others, that it will admit of division. We think that such cases are particularly provided for by the acts of Assembly, regulating descents, and that the proceedings should have conformed to those acts.
¶3The rights of election and preference secured to certain heirs by the statutes referred to, must be regarded as intrinsically valuable. They become vested by the death of the intestate, and may be passed to a grantee.
¶4This we hold is utterly inconsistent with the right now claimed, for another of the heirs to file a bill for sale or partition, in a mode which disregards the provisions of the descent laws, and places all the heirs in the same condition, in respect to priority of choice.
¶5The whole proceeding, therefore, has been erroneously conducted, from the period when a commission should have issued, and the bill itself is defective, in not stating on its face, either that the parties were incapable from the non-age, or other legal disability of some one, or more of the heirs, to make a division; or being capable in law, were unable to agree amongst themselves upon a division, and also in not asking that a commission should issue.
¶6We think all these defects may be cured by amendment, and further proceedings in the county court, as a court of equity, and that the case is within the provisions of the act of 1832, ch. 302, and we accordingly remand it.
¶7CAUSE REMANDED UNDER ACT OF 1832-