cedure in making partition. The same reasons for not allowing a review in actions on book, in the action of account, or declarations for betterments, and various other cases of similar character, exist in this case. It is a statutory proceeding, and not a civil cause prosecuted according to the course of common law.

The result is, that the judgment of the county court must be affirmed.

WHO MAY COMPEL PARTITION.-At common law, the only form of co-tenancy which might be dissolved by one or more of the co-tenants enforcing partition was coparcenary. But the hardship and inconvenience of this restriction was early felt in England, and by the statute of 31 Hen. VIII., c. 1, this remedy was extended to joint tenants and tenants in common of any estate of inheritance in their own right, or in the right of their wives. By the statute of 32 Hen. VIII., c. 32, an enlargement was made upon this enactment, by which joint tenants and tenants in common, for term of life or years, or joint tenants and tenants in common, where one or some of them have estate for term of life or years, with the others that have estate of inheritance or freehold, were empowered to exercise this privilege: Allnatt on Partition, 56; 2 Bla. Com., Cooley's ed., 187; Id., Kerr's ed., 161; Broom & Had. Com. 71; Cole v. Aylott, Lit. 300. Statutes of similar import to the English statutes above mentioned exist in most of the states in the American Union, and the question has often occurred as to when persons under certain circumstances, or occupying particular relations, were sufficiently within their terms to enable them to take advantage of their provisions empowering them to compel partition. A short discussion of this question will be here attempted.

PETITIONER MUST HAVE RIGHT TO POSSESSION. In nearly all of the United States it is a necessary prerequisite to the maintenance of an action for the partition of lands that the petitioner have, at the time of the commencement of his action, an actual or constructive possession, in common with the defendants, of the land sought to be partitioned. Both title and possession, or the right of possession, must be vested in the petitioner: Schori v. Stephens, 62 Ind. 441; Florence v. Hopkins, 46 N. Y. 182; Hughes v. Hughes, 63 How. Pr. 408; Chapin v. Scars, 18 Fed. Rep. 814; Sullivan v. Sullivan, 66 N. Y. 37; Brownell v. Brownell, 19 Wend. 367; Hoyle v. Hughson, 1 Dev. 348; Whitten v. Whitten, 36 N. H. 332; see next subdivision.

Remaindermen or Reversioners cannot Compel. A legitimate application of this rule to the case of reversioners and remaindermen would prevent their maintaining proceedings to enforce partition, and such is unquestionably the law. This is the doctrine of the principal case, and it is supported by Schori v. Stephens, 62 Ind. 441; Hughes v. Hughes, 63 How. Pr. 408; Tabler v. Wiseman, 2 Ohio St. 208; Sullivan v. Sullivan, 66 N. Y. 37. In this latter case the court say: "There are obvious reasons why a remainderman should not, especially as against tenants in possession, whether of a term for years, for life, or in fee, be entitled to institute the proceeding. Any partition which might be made at his instance, although equal when made, might be very unequal when his estate should vest in possession. So, too, if actual partition could not be made, and a sale should be necessary, the tenant having a less estate than a fee might be deprived of the substantial benefit of his terms."

Co-tenant whose Share is Rented may Compel Partition. An application of the rule requiring the petitioner to have a present right of entry before maintaining this proceeding led the court of Massachusetts to deny its sanction to its maintenance by a co-tenant whose share had been leased to a tenant who was in possession: Hunnewell v. Taylor, 6 Cush. 474. “But probably the weight of authority is the other way: " Freeman on Cotenancy and Partition, sec. 446. Such a co-tenant was permitted to compel partition in Woodworth v. Campbell, 5 Paige, 518; Cook v. Webb, 19 Minn. 172; and Hunt v. Hazelton, 5 N. H. 216; S. C., 20 Am. Dec. 575. A partition in such a case will, of course, be made subject to the rights of the lessee: Id. So an unexpired lease from the petitioner to his co-tenant does not prevent his enforcing partition: la.

Right to Enter for Condition Broken Insufficient. To maintain a proceeding for partition, the applicant must show a present right of possession; it is not sufficient to show a right to enter for condition broken. "The right of a party who is entitled to take advantage of a condition broken seems a much more slender title than that of a reversioner. He has but a right to enter, of which he may or may not take advantage; and if he waives the forfeiture, as he may, the partition would be without effect:" Whitten v. Whitten, 36 N. H. 326; see O'Dougherty v. Aldrich, 5 Denio, 388.

PETITIONER MUST NOT BE DISSEISED. In order to maintain a proceeding for compulsory partition, the petitioner must show a tenancy in common with the respondents, and must establish an actual or constructive possession by himself. The proceeding of partition was never intended as an alternative for the action of ejectment, nor as a means of trial of hostile or adverse claims to real property. Consequently, in most of the American states partition cannot be compelled of lands held adversely, or the title to which is in dispute; the legal title must first be established. Where the co-tenant has been ousted or his rights totally denied by his co-tenant, his remedy is by ejectment, in which he may recover his just proportion of the land: Mattair v. Payne, 15 Fla. 683; London v. Overby, 40 Ark. 155; Therasson v. White, 52 How. Pr. 62; Spright v. Waldron, 51 Miss. 356; Shearer v. Winston, 33 Miss. 149; Van Scuyver v. Mulford, 59 N. Y. 426; O'Dougherty v. Aldrich, 5 Denio, 388; Adams ▼. Ames I. Co., 24 Conn. 235; Florence v. Hopkins, 46 N. Y. 186; Beebe v. Griffing, 14 Id. 238; Jenkins v. Van Shaack, 3 Paige, 245; Witherspoon v. Dunlap, Harper, 390; Clapp v. Bromaghan, 9 Cow. 561; Drew v. Clemmons, 2 Jones Eq. 312; Giffard v. Williams, L. R. 5 Ch. 546; Thomas v. Garvan, 4 Dev. 224; S. C., 25 Am. Dec. 708; Burnhans v. Burnhans, 2 Barb. Ch. 405; Rozier v. Johnson, 35 Mo. 331; Longwell v. Bently, 3 Grant Cas. 177; McMasters v. Carothers, 1 Pa. St. 325; Forder v. Davis, 38 Mo. 107; Gravier v. Ivory, 34 Mo. 523; Law v. Patterson, 1 Watts & S. 184; Abbergottie v. Chaplin, 10 Rich. Eq. 428; Bonner v. The Proprietors, 7 Mass. 475; Matthewson v. Johnson, Hoffm. Ch. 560; Freeman on Cotenancy and Partition, sec. 447. "The principle is too plain to need authority, that tenants in common cannot procure a partition or sale of property while out of possession. They must obtain possession before they can sustain a bill for partition:" Drew v. Clemmons, 2 Jones Eq. 314.

Duration or Character of Adverse Claim Immaterial. In Brock v. Eastman, 28 Vt. 658, post, p. 733, the court say: "In cases where a privity has existed between the parties, as in the case of joint tenants or tenants in common, and one tenant ousts his co-tenant by taking the whole profits to himself, denying his co-tenant's right, such a possession may be treated as a disseisn, for the purpose of bringing ejectment; or he may elect to treat such possession of his

co-tenant as his possession, and in that event may maintain a petition for partition. But it would seem from the authorities, if the party in such a case is effectually disseised, they no longer hold the estate together, and he is barred of his remedy for partition." Mr. Freeman, with convincing force, denies the existence of any such distinction as this. He says: "We deny that a possession held by one co-tenant so adversely and exclusively that he is thereby made liable to an action of ejectment differs in degree or character from the possession by which he may defeat a petition for partition. Disseisin and ouster are terms having the same signification in partition as in ejectment:" Freeman on Cotenancy and Partition, sec. 447. In perfect harmony with this view is the expression of the court that "it would be utterly incongruous to hold that where ejectment would lie the plaintiff has possession which would entitle him to bring partition:" Florence v. Hopkins, 46 N. Y. 186. Adverse possession within the meaning of partition proceedings is subject to the operation of the general rule that the possession of one co-tenant is presumed to be the possession of all, and that possession is presumed to follow the legal title; but when an adverse claim or possession is shown, its duration or extent is immaterial. "An adverse holding by one tenant in common for any length of time, however short, previous to the institution of an action of partition, will bar a recovery in such form of action:" McMasters v. Carothers, 1 Pa. St. 324. It is clear that an adverse holding of the property by the defendant for twenty-one days before the bringing of the action would be as effect. ual to defeat the plaintiffs in this action as an adverse holding for twenty-one years would be. The right of the plaintiffs below to recover turned entirely upon the point of their holding together with the defendant at the time the action was commenced, and not upon their unity of possession, or having held together for any previous length of time:" Law v. Patterson, 1 Watts & S. 193. The duration of an adverse possession 66 cannot be material in determining where the possession was at the time of the commencement of the action:" Florence v. Hopkins, 46 N. Y. 186.

86

Unoccupied Lands.—The rule under discussion, requiring possession on the part of petitioner, does not extend to unoccupied or vacant lands. The law, in such a case, casts the seisiu upon, and implies the possession of, the persons holding the legal title, and this presumption continues until an adverse possession is shown by the respondents. There can be no adverse possession under the circumstances, and those having the legal title would in law be seised of the land in such sense that they would be entitled to a partition: Byers v. Danley, 27 Ark. 96; Beebe v. Griffing, 14 N. Y. 238; London v. Overby, 40 Ark. 155; Florence v. Hopkins, 46 N. Y. 186.

Petition may be Retained by Court until Legal Title is Settled. When it is inade to appear that the proceeding for partition cannot be maintained, or the relief prayed for granted, because of the disseisin of the petitioner, or because of a dispute in the title, the court may retain the bill pending proceedings for the settlement of the legal title. The court in Chapin v. Sears. 18 Fed. Rep. 814, say, in such a case, that upon reflection they are of the opinion that the proper course “is to order the present bill to stand as a simple partition bill, and to give leave to complainant, if he is in the peaceable possession of the premises, to institute another suit under the provisions of the state statute to ascertain and determine the title to the land." So in London v. Overby, 40 Ark. 156, the court say, in a similar case: "The court might, instead of dismissing, have retained the bill for a reasonable time, with liberty to the plaintiff to bring such action as he might be advised to establish his title. But this was a matter of discretion." A different course AM. DEC. VOL. LXVII-45

of procedure is advised in Burhans v. Burhans, 2 Barb. Ch. 398. The court there say that the proper course is to dismiss the bill as prematurely filed, without prejudice to the complainant's right to institute a new suit for partition after he shall have established his legal title by the proper action.

IN SOME STATES DISSEISED CO-TENANT, OR ONE OUT OF POSSESSION, MAY COMPEL PARTITION. The rule that a co-tenant who has been disseized or who is out of possession cannot maintain proceedings to compel partition, is not of universal application in all the states of the Union. A notable exception to this rule occurs on Massachusetts, and a decision in that state, Barnard v. Pope, 14 Mass. 436, is responsible for much of the heresy that prevails in the other dissenting states. This case, however, read in any light, is not strongly in favor of the rule it is so often cited as supporting, viz., that a disseised or disposed co-tenant may compel partition; and for all that appears from its report, it may have been, and probably was, decided in recognition and conformity with the general rule requiring seisin and possession on the part of the petitioner. In this case, although the court say, after comments upon a decision, that they think it cannot be inferred that an actual corporal seisin is necessary in order to maintain the proceeding, and that if this were so it would too much restrict the remedy of partition, continue: "It is true that by the common law and the English statutes the writ of partition cannot be maintained by one tenant in common who is disseised; not even if the disseisin be by the co-tenant." They then proceed to discuss the question of seisin of co-tenants, applying the general rule that the possession of one is presumed to be the possession of all, and it is out of their conclusions upon the question of disseisin that the confusion in this case arose. They conclude, however, by saying that there "has been no actual ouster" in this case. If their decision was based upon this fact, it was in conformity with the current authorities. However this may be, the illustrious Chief Justice Shaw, in Marshall v. Crehere, 13 Met. 462, upon the authority of Barnard v. Pope, supra, goes the whole length of saying that an effectually disseised co-tenant, having a right of entry, may maintain compulsory partition proceedings, and this under a more stringent statute than existed when the former case was decided.

So now in Massachusetts, in order to maintain such proceedings, "the pe titioner's seisin in fact need not be proved:" Wood v. Le Buron, 8 Cush. 474. This is also the settled law of Maine, the court in that state, in Baylies v. Bussey, 5 Me. 157, saying: 'Considering, therefore, that such was the acknowledged law of Massachusetts at the time of our separation from that commonwealth, no sound reason can be given why this court should adopt a different principle." See also Call v. Baker, 12 Id. 325. The rule cannot be said to be the same in New Hampshire. The case of Miller v. Dennett, 6 N. H. 114, is hardly an authority for the proposition that actual possession is unnecessary to the maintenance of partition proceedings; certainly not when read in connection with Brown v. Brown, 8 Id. 95, and Whitten v. Whitten, 36 Id. 326. In Ohio a right of entry will entitle a party to maintain partition without the actual seisin required in most of the states: Tabler v. Wiseman, 2 Ohio St. 207; such appears to be the law in Minnesota: Cook v. Webb, 19 Minn. 170; and possibly in Illinois: Howey v. Goings, 13 Ill. 107; S. C., 54 Am. Dec. 427. In Kansas the disseisin of petitioner does not bar his right to compel partition; possession is not a necessary prerequisite, and a mere right of entry is sufficient. This is under the code, and the reasoning of the court, accounting for their departure from the general rule, is very satisfactory. They say: "Under our statutes, the action of partition is legal as well as equitable, and the action of ejectment is equitable as well as

66

legal. The same court has jurisdiction of both actions, and the two actions may be united in the same proceeding, as we have heretofore seen. Therefore, whatever may have been the reason at one time for refusing to partition land where the plaintiff was not in the possession thereof, no such reason now exists; and when the reason for any particular rule ceases, so does the rule itself cease:" Scarborough v. Smith, 18 Kan. 399-40S. This is also the settled law of California under her code system: Martin v. Walker, 58 Cal. 590; Noce v. Daveggio, 3 West Coast Rep. 491. In the language of the polished Chief Justice Sanderson: Such is one of the fruits of the new system of practice which we have adopted, and when contrasted with the practice in such cases at common law, serves to illustrate its superiority:" De Uprey v. De Uprey, 27 Cal. 335. In Indiana, in Godfrey v. Godfrey, 17 Ind. 9, similar reasoning is adopted; but see Schori v. Stephens, 62 Id. 448. The federal cases of Cuyler v. Ferrill, 1 Abb. C. C. 182, and Parker v. Kane, 22 How. 1, incline to the opinion that in states where common-law and chancery jurisdiction are blended in the same tribunal, partition proceedings should be entertained, although the title to the property sought to be aparted is in dispute, and the petitioner is not in possession.

WHEN EQUITY WILL DECREE PARTITION, ALTHOUGH PREMISES HELD ADVERSELY.-An apparently well-established exception to the general rule-deny. ing a petitioner's right to compel partition when the defendant is in the adverse possession of the premises is the case of a petitioner who applies to a court of equity for the exercise of its beneficent jurisdiction to establish his title, to construe a will, etc., and for partition. In such a case, where "the plaintiff has an equitable title, and asks the aid of the court of equity to establish it, if the court ascertain that he has an interest, and what that interest is, the doctrine that partition cannot be had when the defendant is in the adverse possession of the premises does not apply. The decree establishes plaintiff's title, and under it the court may put him in possession, and a suit in ejectment becomes unnecessary. The court, having acquired jurisdiction of the cause, may proceed to determine the whole controversy by decreeing a partition of the premises: " Dameron v. Jameson, 71 Mo. 100; Rozier v. Griffith, 31 Id. 171; Scott v. Guernsey, 60 Barb. 163; Hosford v. Mervin, 5 Id. 62; Howey v. Goings, 13 II. 108; S. C., 54 Am. Dec. 427; Overton's Heirs v. Woolfskill, 6 Dana, 373; Freeman on Cotenancy and Partition, sec. 449.

PERSONAL PROPERTY HELD ADVERSELY CAN BE PARTITIONED. The general rule preventing the maintenance of partition proceedings, where the defendant holds adversely, does not apply to personal property. This is so because, unlike disputes concerning the title to real estate, one co-tenant of personal property cannot maintain an action at law to try or establish his title against his co-tenant while the latter remains in possession of the property: Smith v. Dunn, 28 Ala. 316; Weeks v. Weeks, 5 Ired. Eq. 111; S. C., 47 Am. Dec. 358; Edwards v. Bennett, 10 Ired. 361; Freeman on Cotenancy and Partition, sec. 448.

TRANSFER OF RIGHT TO PARTITION.-A co tenant who has conveyed away his share in the common property is not entitled to partition under any circumstances or for any purpose: King v. Howard, 27 Mo. 21. The entire right to maintain such a proceeding passes to his grantee: Hill v. Jones, 65 Ala. 214. An alienee of an heir is entitled to partition in the same manner as the heir: Stewart's Appeal, 56 Pa. St. 241; Regan's Estate, 7 Watts, 438. So the transferee of an undivided interest in a homestead by a husband and wife may compel its partition by any means provided by law: Ferguson v. v. Reed, 45 Tex, 574.