In Case of Conveyance for Benefit of Creditors.-In Van Arsdale v. Drake, 2 Barb. 599, the petitioners were seised of a life estate in real property by virtue of an assignment to them by one of several tenants in common, in trust for the benefit of his creditors. The court held that they had such an estate as would support the proceeding. But this power was denied in Ritchie v. Munder, 49 Md. 10. The deed of assignment in this case, for the uses, trusts, intents, and purposes therein specified, empowered the trustees "to sell the property belonging to the parties," etc. The court say: "The deed empow ered the trustees to sell the property of the parties therein mentioned, according to their best discretion, for the benefit of the trust; but it did not authorize them to institute such a proceeding as this to cause the interest of other par ties in the same property to be also sold."

that

Judgment Creditor Who has Levied his Execution upon an undivided in terest in land belonging to his judgment debtor cannot compel partition. "The debtor has a right to redeem the land levied upon within a year, and ought to be enabled to redeem without being subjected to the expenses may be incurred in a process for partition. The statute contemplates a redemption of the property in the same condition in which it was levied upon:" Newton Bank v. Hull, 10 Allen, 144. To the same effect: Phelps v. Palmer, 15 Gray, 499; Freeman on Cotenancy and Partition, sec. 451; Ewer v. Hobbs,

5 Met. 6.

MORTGAGORS AND MORTGAGEES.-"A mortgagor continuing in possession, and before the entry of the mortgage for condition broken, has the right to compel a partition. But the partition is binding only on his interest, and cannot prejudice the mortgagee: " Freeman on Cotenancy and Partition, sec. 452; Colton v. Smith, 11 Pick. 311; S. C., 22 Am. Dec. 375; Call v. Baker, 12 Me. 237; Watten v. Copeland, 7 Johns. Ch. 140; Bradley v. Fuller, 23 Pick. 1. Upon this point the supreme court of Maine say: "Nor can the fact that some of the petitioners have conveyed their interest in mortgage be interposed by the respondent to prevent their share from being assigned to them. Between the parties to a mortgage and their assigns the title is in the mortgagee or his assigns, but with respect to strangers to the mortgage, the mortgagor in possession is regarded as the owner of the estate, and so seised as to enable him to convey it, or to maintain a real action counting upon his own seisin:” Upham v. Bradley, 17 Me. 427. But where the mortgagor has mortgaged his interest to his co-tenant, he cannot enforce partition. "Whether the petition for partition be regarded as a real action in which the title is drawn in question, or as a suit for possession, it is an adversary suit, and the mortgagee has both the legal title and the right of possession as against the mortgagor and those who claim under him. A bill to redeem is the proper remedy, and after redemption a petition for partition may be sustained: Bradley v. Fuller, and Fuller v. Bradley, 23 Pick. 9; Blodgett v. Hildreth, 8 Allen, 186. The mortgagee in such a case was allowed partition in equity, in Green v. Arnold, 11 R. I. 364; but it appears that the mortgagor consented to the arrangement.

In Rich v. Lord, 18 Pick. 327, Chief Justice Shaw held that a mortgagee of an undivided moiety by virtue of his mortgage acquired such a legal seisin and possession-the possession of his mortgagor and the latter's co-tenants being his possession-as would entitle him to maintain partition. He does not discuss the question, speaks of it as one presenting no great difficulty, and cites no authority for so holding. But the later case of Ewer v. Hobbs, 5 Met. 3, may be taken as denying this doctrine. In discussing the nature of a mortgage and the estate created thereby, this same illustrious judge, after stating that the first great object thereof is to effectually secure a debt, says:

"The next is to leave to the mortgagor, and to purchasers, creditors, and all others claiming derivatively through him, the full and entire control, disposition, and ownership of the estate, subject only to the first purpose, that of securing the mortgagee." And again he says: "But in all other respects, until foreclosure, when the mortgagee becomes the absolute owner, the mortgage is deemed to be a lien or charge, subject to which the estate may be conveyed, attached, and in all other respects dealt with as the estate of the mortgagor." It appears to us that these views are incompatible with the former decision. There appears to be no doubt that until an absolute foreclosure a mortgagee has no such estate as will entitle him to maintain partition proceedings: Jones on Mortgages, secs. 705, 706; Phelps v. Townsley, 10 Allen, 554; Norcross v. Norcross, 105 Mass. 265. An entry to foreclose at the permission of the mortgagor before condition broken is insufficient: Norcross v. Norcross, supra.

EQUITABLE TITLE. "As a general rule, an equitable title will not be recognized nor protected outside of a court of equity. Except in the case of a mortgagor, a party seeking to assert rights in a suit at law for a partition must base his claim upon a legal title: " Freeman on Cotenancy and Partition, sec. 453. An equitable title is insufficient: McCabe v. Hunter, 7 Mo. 356; Hopkins v. Toel, 4 Humph. 46; Coale v. Barney, 1 Gill & J. 341; Stryker v. Lynch, 11 N. Y. Leg. Obs. 116. This, we apprehend, is but a special application of the general rule requiring an undisputed seisin and title, and possession on the part of the petitioner, and is subject to the operation of the rule laid down in the above subdivision, entitled "When Equity will Decree Partition, although Premises Held Adversely." In Pennsylvania, however, the rule is different, and an equitable title is sufficient: Willing v. Brown, 7 Serg. & R. 466. This is so from necessity, as in that state they have no courts of chancery, and if the equitable title could not be thus asserted, it would be without protection. ADMINISTRATORS.-An administrator of an estate which is shown to be insolvent has no such seisin or interest in the land of such estate as entitles him to partition: Nason v. Willard, 2 Mass. 478. In such a case, the right to partition vests in the heirs. "Their right to partition is not affected by the circumstance that the administrator, if the estate is insolvent, is entitled to the rents and profits pending the administration; not that he has the right by a license from the court of probate to sell the property for the payment of debts:" Kelley v. Kelley, 41 N. H. 502. In Massachusetts the court has no authority, upon the death of a petitioner for partition, pending the final determination of the matter, to appoint his administrator to prosecute the case: Richards v. Richards, 136 Mass. 126.

TENANTS FOR LIFE OR FOR YEARS.-It is universally established in the United States, under the different state statutes, that a tenant for years or for life inay compel partition between himself and his co-tenants. "The statute seems to have been designed to authorize partition among those 'holding,' 'owning,' or 'having title to' land; and it does not appear to have been held in any case that an ownership in fee was necessary, or that an estate for life was not sufficient:" Shaw v. Beers, 84 Ind. 528; Swain v. Hardin, 64 Id. 85; Russell v. Russell, 48 Id. 456; Ackley v. Dygert, 33 Barb. 189; Van Arsdale v. Drake, 2 Id. 600; Brevoort v. Brevoort, 70 N. Y. 139; Jenkins v. Fahey, 73 Id. 355. Partition may be had on petition of tenant for years, although the tenant of the other part of the premises holds the same in fee: Mussey v. Sanborn, 15 Mass. 155. The same appears to have been held in Shaw v. Beers, 84 Ind. 528. One who holds a life estate determinable upon his marriage, in one fifth of an estate, may enforce partition against his co tenants

who own the other four fifths, and the reversion of his own fifth: Hobson v. Sherwood, 4 Beav. 184; see Freeman on Cotenancy and Partition, sec. 455.

TENANTS BY CURTESY AND IN DOWER.-A tenant by the curtesy has such an estate as will entitle him to maintain proceedings to compel partition: Otley v. McAlpine, 2 Gratt. 340; Riker v. Darke, 4 Edw. Ch. 668; and see Darlington's Appropriation, 13 Pa. St. 430; Walker v. Dilworth, 2 Dall. 257; Weise v. Welch, 30 N. J. Eq. 431; Freeman on Cotenancy and Partition, sec. 456. But it is otherwise with tenant in dower. A widow having a right of dower in land is not a tenant in common with the owners of the land, and consequently cannot maintain partition proceedings: Wood v. Clute, I Sandf. Ch. 199; Coles v. Coles, 15 Johns. 320; S. C., 8 Am. Dec. 231; Ward v. Gard wer, 112 Mass. 42; Leonard v. Motley, 75 Me. 418.

INFANTS.-It appears at the present time to be settled law that an infant may, in an appropriate manner, be made a party complainant, or may be the sole party complainant in a compulsory partition proceeding. This is of course so only in the absence of a statutory prohibition: Shull v. Kennon, 12 Ind. 34; Freeman v. Freeman, 9 Heisk. 301; Mitchell v. Jones, 50 Mo. 438; Goudy v. Shank, 8 Ohio, 415; Zirkle v. McCue, 26 Gratt. 517; Cocks v. Simons, 57 Miss. 183; Wilson v. Duncan, 44 Id. 642; Burks v. Burks, 7 Baxt. 353; Waugh v. Blumenthal, 28 Mo. 462; Larned v. Renshaw, 37 Id. 458. "That any of the parties are minors is a reason why the court should be careful to guard their interests, but is no reason why the right should be denied to them, when upon satisfactory evidence it is shown to be to their interest that the partition, or sale instead of a partition, should be made:" Freeman v. Freeman, 9 Heisk. 306. In Jonson v. Noble, 24 Mo. 252, the supreme court of Missouri denied the application of a minor, by his next friend, for partition, upon the ground that such proceedings were usually brought for infants for the purpose of defrauding them, or procuring an unjust division of their property. That infants might be made parties defendant was no reason why they should be allowed to be complainants, as in the absence of ability to totally check an evil its existence should be restricted. This decision was shortly afterwards overruled by Thornton v. Thornton, 27 Id. 307, where the court said: "It is the duty of every minister of the law to watch with jealous care the rights of infants; but human wisdom has not yet succeeded in providing a shield that will protect the weak and innocent against the strong and the crafty, and it is not perceived how infants are more exposed to robbery or treachery when they are plaintiffs than when they are defendants. If an infant has no other means of support but an undivided interest in real estate, it is often of great importance to him to have the power of forcing a partition, and of securing the separate enjoyment of his share, for while it is held in common with an obstinate cotenant it would not be productive in yielding a ground-rent, or in any other manner; and to deny him the right to have a partition would drive him to want, or to an application to the county court for the sale of his interest, and in that way produce the very result dictated by the cupidity of his tenant in common."

Mr. Freeman lays down the rule governing the granting of partition at the prayer of an infant in the following language: "But doubtless an application for partition is not, when made by or on behalf of an infant co-tenant, to be granted as in the case of an adult co-tenant, as a matter of course. An adult has, when not fettered by special obligations existing independent of the cotenancy, an absolute right to partition; and the court to which the applica tion is properly presented has no authority to consider whether the further

continuance of the co-tenancy would prove more or less advantageous than a partition. But the protection of infants is one of the duties with which courts of equity are specially charged. When the court to which an application for partition is presented on behalf of an infant is a court of equity, or one authorized in matters of partition to exercise a chancery jurisdiction, it not only may, but ought to, inquire whether the proposed partition will operate to the prejudice or to the benefit of the infant petitioner; and if, as the result of such inquiry, the conclusion reached is that the partition will not prove beneficial, it ought to be denied: " Freeman on Cotenancy and Partition, sec. 457. Hartmann v. Hartmann, 59 Ill. 104, is an illustration of the application of these views.

MARRIED WOMEN.-A married woman maintaining partition should join her husband with her, unless by the law of the state where the proceeding is brought she is empowered to sue alone in matters relating to her separate property. If she sues alone, the partition will be imperfect, as failing to extinguish her husband's estate in the property, although it might bind her interest: Freeman on Cotenancy and Partition, sec. 458; Spring v. Sandford, 7 Paige, 550-555. Where husband and wife are co-tenants, they, it is said, cannot compel partition, one against the other, because they constitute adverse parties, and the proceeding to compel partition being an adversary one, this is an insurmountable obstacle. Neither can they join in a petition: Howe v. Blandon, 21 Vt. 321; see Marston v. Ward, 35 Tex. 798. But a married woman may maintain the proceeding against her husband in a court of equity: Moore v. Moore, 47 N. Y. 468.

NUMBER OF CO-TENANTS MAY JOIN IN PETITION FOR PARTITION. That two or more co-tenants may unite as petitioners in a proceeding to compel partition against their remaining co-tenants has never been doubted. Those so uniting may have their several shares set off to them, to be held together and undivided: Freeman on Cotenancy and Partition, sec. 459; Ladd v. Perley, 18 N. H. 396; Upham v. Bradley, 17 Me. 427; Choteau v. Paul, 2 Mo. 263. But the right of all the co-tenants to unite in one petition has been questioned. In Sweet v. Bussey, 7 Mass. 503, the court refused to permit a partition to be thus made, saying that if the parties are qualified in point of age and mental capacity to maintain the petition, they are competent to effect partition among themselves. "The statute plainly implies that this process is only maintainable where the applicant has a share only, and the respondent, or some other person not applying, has an interest respecting which the partition by this process will be conclusive, to some purposes at least, after due notice." The language of the supreme court of Missouri is very similar. "The statute contemplates that in suits for partition there should be a plaintiff and a defendant. In all suits at common law there must be an actor and a reus. If parties come in voluntarily and ask the court to make a partition among them, and it is done, they will stand afterwards just as they did before the court interfered, so far as judicial sanction is concerned:" Bompart v. Boderman, 24 Mo. 399. But the authority of this latter case was shortlived, for it was overruled by Waugh v. Blumenthal, 28 Id. 464, and Larned v. Renshaw, 37 Id. 462. The reasoning of these latter cases is very sound, and their doctrine, i. e., that all the co-tenants may unite in a proceeding to secure a partition of their common estate, seems the most consonant with modern practice. Under the peculiar provisions of the Alabama code the probate court has no jurisdiction to decree partition where the land sought to be aparted is not susceptible of division into equal parts, or parts of equal value. Consequently, where the parties own unequal interests, as where one

has purchased the share of one of his co tenants, the partition cannot be made: Ward v. Corbett, 72 Ala. 438.

PETITIONER MUST BE ENTITLED, AT TIME OF FILING PETITION. "It is material that the applicant should be entitled to partition at the time when his demand for it was made. If a reversioner file a bill for partition, it must be dismissed, notwithstanding the fact that before the hearing he purchased the life estate, and thereby acquired an interest entitling him to partition:" Freeman on Cotenancy and Partition, sec. 460. A co-tenant who, at the filing of his petition, has no right of entry or possession, but who acquires such right pending the hearing, cannot have judgment of partition. The fact that he acquired such right in the interval between the filing of the petition and the hearing cannot affect the rights of the parties, which must be determined upon the facts as they stood when the process was instituted:" Hunnewell v. Taylor, 6 Cush. 476; see also Phelps v. Palmer, 15 Gray, 501. But the supreme court of Vermont sustained a petition for partition filed before the petitioner's right became perfect, upon the ground that process had not been served until after that time: Hawley v. Soper, 18 Vt. 322.

66

PROVISIONS IN DEEDS AND WILLS AFFECTING RIGHT TO DEMAND PARTITION.-A petitioner for partition became entitled to his undivided share of the premises under a deed which contained the clause "to remain in cominon and undivided," inserted at the close of the description. This was held not to amount to a condition or a covenant, and not to affect the petitioner's right to a partition: Spaulding v. Woodward, 53 N. H. 573; and the fact that the petitioner's vendor retained a lien for the purchase price upon his undivided share of the common property does not affect his right to claim partition: Hall v. Morris, 13 Bush, 322. Where a will provides when a division of the estate shall take place, partition thereof cannot be had at an earlier day: Hill v. Jones, 65 Ala. 214; and under a will to three persons for life, remainder to such of their children as should be living at the death of the above persons, the land cannot be partitioned, those taking in remainder not being ascertained: Williams v. Hassell, 74 N. C. 434. Under a will which first makes provision for the payment of certain legacies out of an estate, and then provides that the net income of the residue is to be paid equally to the sous and daughters of deceased during their lives, remainder to their children, the court held that the residuary estate was held on a continuing and active trust, and that a partition of the same could not be had, although the same might appear practicable: Outcalt v. Appleby, 36 N. J. Eq. 73.

CESTUI QUE TRUST CANNOT COMPEL PARTITION. A cestui que trust cannot maintain proceedings to compel partition.. "Such an action can only be maintained by some one having an estate or interest in the land. The parties must hold and be in possession of lands, tenements, and hereditaments as joint tenants or as tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years.' Here the plaintiff has no estate whatever. Her husband's will, under which she claims, and which is part of the record, creates in her favor nothing but a trust. The realty is not devised to her and her daughter for their respective lives with remainder over to the latter's children. The devise is explicitly to the trustees, and the entire estate is vested in them subject to the execution of the trust. It is quite clear, therefore, that there could be no partition at the suit of a mere cestui que trust, nor could the express trust created by the will be nullified by a sale under a judicial decree in such an action:" Harris v. Larkin, 22 Hun, 489. So a conveyance by a trustee to a cestui que trust which does not extinguish the trust gives the latter no status to maintain an action for partition: Thebaud v. Schemerhorn, 10 Abb. N. C. 72.