72-73. Martin v. Martin, 170 111. 639, 48 N. E. (;94, 62 Am. St. Rep. 411; Eberts v. Fisher, 54 Mich

Real Property.

[ Sec. 204 estoppel are ordinarily lacking in this connection. The refusal of partition to one who has brought suit therefor in violation of his contract appears to bear a close analogy to the grant of specific performance of a contract.

The statement that partition is a matter of right is also subject to an exception when the devise or conveyance by which the cotenancy is created expressly prohibits partition during a period named or until a certain event, such prohibition being regarded as effective to prevent an involuntary partition in violation thereof.74 In New York, however, such a prohibition appears to have been regarded as nugatory.75 And it seems somewhat anomalous that one should be able, by the insertion of a particular provision in a conveyance or devise executed by him, to restrict the right of his grantees or devisees to maintain the ordinary legal proceedings in connection with the property.76

Property held in tenancy by entireties, and likewise community property, cannot be partitioned, though, after the termination of the marriage relation by divorce,

294, 20 N. W. 80; Mclnteer v. Gillespie, 31 Okla. 644, 122 Pac. 184.

74. Hill v. Jones, 65 Ala. 214; Dee v. Dee, 212 111. 338, 72 N. E. 429; Kepley v. Overton, 74 Ind. 448; Williamson v. Maynard, 162 Ky. 726, 173 S. W. 122; Peterson v. Damonde, 98 Neb. 370, 152 N. W. 786; Hunt v. Wright, 47 N. H. 396, 93 Am. Dec. 4 51; Blake v. Blake, 118 N. C. 575. 24 S. E. 424; Massey v. Davenport, 23 S. C. 453; Roberts v. Herron, 78 S. C. 115, 58 S. E. 968; Greeney v. Greeney, 155 Wis. 621, 145 N. W. 201.

In Fischer v. Butz, 224 111. 379, 79 N. E. 65; McLaughlin v. Greene, 198 Mass. 153, 93 N. E. 1112; a testamentary direction that distribution be made by the executors was regarded as ground for the refusal of a decree for partition. But see Rawles' Appeal, 119 Pa. 100, 12 Atl. 809; In re Carter's Estate, 225 ?a. 355, 74 Atl. 240, to the contrary. See also Chouteau v. Paul, 3 Mo. 260.

75. Oxley v. Lane, 35 N. Y. 340; Lovett v. Gillender, 35 N. Y. 617; Greene v. Greene, 125 N. Y. 506. 21 Am. St. Rep. 743, 26 N. E. 739.

76. Occasionally it is provided by the statute that partition shall not be made in violation of the directions of the will. See Brown v. Brown, 43 Ind. 474; Stewart v. Jones, 219 Mo. 614, 118 S W 1.

- Who may demand partition. The right to demand partition depends to such an extent upon the construction and effect of the statute of the particular state, that any general statements in regard thereto are not unlikely to be fallacious. It may be said, however, that one cannot ordinarily demand partition if he has merely an undivided interest in remainder upon an estate for life,78 in the absence of a statute to a different effect.79 And one who has as life tenant the sole right of possession cannot usually maintain the proceeding as against the reversioners or remaindermen,80 even though he himself has an undivided interest

77. Freeman, Cotenancy, Sec.Sec. 64, 444, 445; Kirkwood v. Domnau, 80 Tex. 645, 26 Am. St. Rep. 770, 16 S. W. 428; Russell v. Russell, 122 Mo. 235, 43 Am. St. Rep. 581, 26 S. W. 677. See ante Sec. 194, note 47.

78. Freeman, Cotenancy, Sec.Sec. 440, 446; 3 Pomeroy, Eq. Jur. Sec. 1387, note; Evans v. Bagshaw, L. R. 8 Eq. 469, 5 Ch. App. 340; Hamby v. Hamby, 165 Ala. 171. 138 Am. St. Rep. 23, 51 So. 732; Tower v. Tower, 141 Ind. 223, 40 N. E. 747; Sullivan v. Sullivan, 66 N. Y. 37: Wood v. Sugg, 91 N. C. 93, 49 Am. Rep. 639; Eberle v. Gaier, (Ohio) 105 N. E. 282; Savage v. Savage, 19 Ore. 112, 20 Am. St. Rep. 795; Cannon v. Loraax, 29 S. C. 369, 13 Am. St. Rep. 739; Nichols v. Nichols, 28 Vt. 230, 67 Am. Dec. C99; Seibel v. Rapp, 85 Va. 28, 6 S. E. 478; Merritt v. Hughes, 36 W. Va. 356, 15 S. E. 56; Morse v. Stockman, 65 Wis. 36, 26 N. W. 176.

79. For cases applying such statutes, see Scoville v. Hilliard, 48 111. 453; Deadman v. Yantis, 230 111. 343, 82 N. E. 592; Cook v. Webb, 19 Minn. 170; Hanson v. Ingwaldson, 77 Minn. 533, 77 Am. St. Rep. 692, 80 N. W. 702; Atkinson v. Brady, 114 Mo. 200, 35 Am. St. Rep. 744, 21 S. W. 480; Smith v. Gaines, 38 N. J. Eq. 65; Blakely v. Calder, 15 N. Y. 623; Oliver v. Lansing, 50 Neb. 828; McDonald v. McDonald, 256 Pa. 304, 100 Atl. 867.

SO. Cobb v. Frink, (Ala.) 75 So. 939; Stansbury v. Inglehart, 9 Mackey (D. C.) 134; Smith v. Runnells, 97 Iowa, 55, 65 N. W. 102; Love v. Blauw, 61 Kan. 496, 78 Am. St. Rep. 334, 59 Pac. 1059; Eversole v. Combs, 130 Ky. 82, 112 S. W. 1132; Metcalfe v. Miller. 96 Mich. 459, 35 Am. St. Rep. 617, 56 N. W. 6; Stockwell v. Stock-well, 262 Mo. 671, 172 S. W. 23; Purdy v. Purdy, 18 N. Y. App. Div. 310, 46 N. Y. Supp. 215; Seiders v. Giles, 141 Pa. St. 93, in reversion or remainder.81

It has been decided that, if two persons, as joint lessees, have undivided interests for the same period, while one of them can obtain partition as against the other, he cannot obtain it as against the reversioners, who remain unaffected by the partition.82 And a like view has been asserted as regards the effect upon remaindermen of a partition sought by one of two persons who were cotenants for life.83

In asserting the inability of one having an undivided interest in remainder upon a life estate to demand a partition, it is occasionally said that one who has not an estate in possession can not maintain the proceeding, for the reason that the purpose of the proceeding is to sever the possession. This, however, appears to be questionable. It has been decided in several cases that the existence of an outstanding estate for years, whether this is by reason of a lease by one cotenant to the other, or by reason of a lease to a stranger, does not affect the right to demand partition,84 and this accords with the common

21 Atl. 514; Holt v. Hamlin, 120 Tenn. 496, 111 S. W. 241; McCon-nell v. Bell, 121 Tenn. 413, 114 S. W. 203; Easly v. Easly, 78 Wash. 505, 139 Pac. 200.