¶1 (dissenting). I am utterly unable to understand the reasoning by which the circuit court and this court have reached the conclusion that the plaintiff is entitled to a lien on the defendant Marie Stanford’s *49 interest in certain real property in Multnomah, county to the extent of $1,000 and the further sum of $150, attorney’s fees, and why after arriving at that conclusion it is deemed necessary to sell the two entire tracts of land to pay to the plaintiff the sum for which the circuit court and this court have decided that the defendant Marie Stanford is indebted to him.
¶2 This proceeding was instituted by the plaintiff, under claim of being the owner of an undivided one-fifteenth interest therein, to have two tracts of real property in Multnomah county partitioned, or sold if incapable of partition. The defendants, with the exception of Allen H. McCurtain, are alleged to be the owners of the remaining undivided fourteen-fifteenths interest in the land. The plaintiff claims ownership of a one-fifteenth interest by virtue of a deed from Marie Stanford, who attempted to have said deed set aside on the ground of alleged fraud. Both the circuit court and this court have determined that the defendant Marie Stanford has failed to support her allegations of fraud and that the plaintiff is the owner of an undivided one-fifteenth interest in the two tracts of land here involved.
¶3 Even though the circuit court may believe, and therein be affirmed by the majority opinion of this court, that it is doing practical justice between the plaintiff and the defendant Marie Stanford by entering a judgment or decree in favor of the plaintiff in the sum of $1,000 plus $150, attorney’s fees, and decreeing that the total thereof be a lien on that defendant’s interest, rather than permitting the plaintiff to have set aside his proportionate amount of the money realized from a sale of the property on partition, nevertheless I know of no power or right in the circuit court or this court to *50 substitute for the deed from defendant Stanford to the plaintiff an agreement on the part of that defendant to pay to the plaintiff a reasonable amount as attorney’s fee, and in addition to allow plaintiff a further attorney’s fee in this case to establish his right to the original fee.
¶4 The plaintiff has agreed to accept the sums named, in lieu of having the land partitioned or sold, but the defendant Stanford has not given her consent to a settlement on the basis suggested by the circuit court. It may be to her advantage to pay the plaintiff these sums of money, in the event that the two entire tracts of land later be sold for $30,000 or more, as suggested by the plaintiff; but that does not justify the court in fixing a more or less arbitrary monetary value on an undivided interest in land and providing that the amount so determined shall be paid out of any one party’s share of the proceeds of sale of the land. We are not here concerned with the amendment of section 6-601, Oregon Code 1930, by chapter 415, Oregon Laws 1937, which permits the court, under certain conditions, to determine the value of the interest owned by the party seeking a partition, for the reason that the conditions therein referred to are not here present, and for the further reason that that amendment was not effective at the time the decree herein was entered ,in the circuit court.
¶5 If I read correctly the decree appealed from, it is to the effect that if the defendant Stanford does not pay to the plaintiff the $1,150 to which the circuit court has decreed him entitled, then the two tracts of land involved in the partition suit are to be sold. The question naturally arises why, if the amount decreed to be due the plaintiff from the defendant Stanford is an indebtedness owing him by that defendant, it is neces *51 sary to sell anything more than that defendant’s undivided interest in the land to pay such indebtedness. The other co-tenants are not desirous of having the property sold, and a judgment creditor of one co-tenant has no right as such judgment creditor to maintain a suit for partition: Marx v. La Rocque, 27 Or. 45 (39 P. 401); Ukase Investment Co. v. Smith, 92 Or. 337 (181 P. 7).
¶6 In my opinion, the decree appealed from should be reversed and the cause remanded with instructions to proceed with the partition of the land in which the plaintiff has been found to be the owner of an undivided one-fifteenth interest.