This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
81. Johnson v. Johnson, 7 Allen (Mass.) 196, 83 Am. Dec. 676; Pabst Brewing Co. v. Melms, 105 Wis. 441, 76 Am. St. Rep. 921, 81 N. W. 882; Metcalfe v. Miller, 96 Mich. 459, 35 Am. St. Rep 617, 56 N. W. 16. But a contrary view appears to be asserted in Morgan v. Staley, 11 Ohio 389; Treman v. Baker, 63 Tex. 641; Ot-ley v. McAlpine, 2 Gratt. (Va.) 340.
82. Jameson v. Hayward, 106 Cal. 682, 46 Am. St. Rep. 268, 39 Pac. 1078.
83. Metcalfe v. Miller, 96 Mich. 459, 35 Am. St. Rep. 617, 56 N. W. 16; Judkins v. Judkins, 109 Mass. 181; Piano Mfg. Co. v. Kindschi.. 131 Wis. 590, 111 N. W. 680; and see Lawson v. Bonner, 88 Miss. 235, 117 Am. St. Rep. 738, 40 So. 488.
84. Willard v. Willard, 145 U. S. 116, 36 L. Ed. 644; Woodworth v. Campbell, 5 Paige (N. Y.) 58; Hunt v. Hazleton, 5 N. H. 216; Watson v. Watson, 150 Mass. 84, 22 N. E. 438; Brendel v. Klopp, 69 Md. 1, 13 Atl. 589; Oliver v. Lansing, 50 Neb. 828, 70 N. W. 369; Peterman v. Kingsley, 140 Wis. 666, 123 N. W. 137; Lucy v. Kelly, 117 Va. 318, 84 S. E. 661; see Henderson v. Henderson, 136 law authorities.85 The purpose of the proceeding at common law appears to have been to obtain a division of the freehold, that is, of the seisin, for which reason an estate less than freehold was entirely disregarded, and the above decisions would suggest that such is still the purpose of the proceeding, rather than the severance of the possession.
One who has an estate for life,86 or in fee simple,87 in possession, in an undivided share, can ordinarily maintain the proceeding as against all the others interested in the property, including remaindermen as well as life tenants.
Iowa, 564, 114 N. W. 178 (lease for life). Contra, Cannon v. Lo-max, 29 S. C. 369, 1 L. R. A. 637, 13 Am. St. Rep. 739, 7 S. E. 529. A so-called lease of coal in place, with the right to mine even to exhaustion, with a condition of forfeiture on nonpayment of royalty, was held not to be within the principle of the above cases, and partition of the land was refused. McMullen v. Blecker, 64 W. Va. 88, 131 Am. St. Rep. 894, 60 S. E. 1093. Such a "lease" is in effect a conveyance in fee simple.
85. Co. Litt. 46a, 167a; Com. Dig. Parcener, C. 6; Fitzh. Nat. Brev. 62D.
86. Gayle v. Johnson, 80 Ala. 388, McQueen v. Turner, 91 Ala. 273, 8 So. 863; Shaw v. Beers, 84 Ind. 528; Eversole v. Combs, 130 Ky. 82, 112 S. W. 1132; Reinders v. Koppelman, 68 Mo. 482; Bre-voort v. Brevoort, 70. N. Y. 136; Black v. Washington, 65 Barb. (N. Y.) 176; Holmes v. Fulton, 193 Pa. 270, 44 Atl. 426; Pale-thorpe v. Palethorpe, 194 Pa. 408, 45 Atl. 322; Carneal v. Lynch, 91
Va. 114, 50 Am. St. Rep. 819, 20 S. E. 959; Field v. Leiter, 16 Wyo. 1, 125 Am. St. Rep. 997, 90 Pac. 378, 92 Pac. 622; Gaskell v. Gas-kell, 6 Sim. 643.
So where plaintiff had a life estate in one undivided share and a fee simple in the other share. Fitts v. Craddock, 144 Ala. 437, 113 Am. St. Rep. 53, 39 So. 506; Lucy v. Kelly, 117 Va. 318, 84 S. E. 661.
But that a life tenant in an undivided share and the owner of the fee simple in the whole property subject to such life tenancy are not joint owners within the meaning of the partition statute, see Van Meter v. Van Meter, 160 Ky. 163, 169 S. W. 592.
87. Hill v. Reno, 112 111. 154; Betz v. Farling, 274 111. 107, 113 N. E. 40; Swain v. Hardin. 64 Ind. 85; Johnson v. Brown, 74 Kan. 346, 86 Pac. 503; Ackley v. Dygert, 33 Barb. (N. Y.) 176; Tolson v. Bryan, 130 Md. 338, 100 Atl. 366; Allen v. Libbey, 140 Mass. 82, 2 N. E. 791; Biddle v. Biddle, 117 Mich. 28, 75 N. W. 91.
One who has no vested estate in the land, but merely the possibility of an estate, such as a contingent remainder or an executory interest, cannot demand partition.88
One who has the ownership in severalty of a distinct part of the land, as the grantee of timber thereon, is obviously not a cotenant so as to be entitled to partition.89 And likewise, one who has merely a right of profit in the land,90 as, for instance, a right to extract oil from the land,91 is not entitled to partition, except perhaps as, claiming under a grant from one cotenant of the land, he may be entitled to do so in right of the latter, in order to make the grant effective.92
- Trust property. It has been asserted, in a number of cases, that one who has merely an equitable interest in an undivided share of certain land is entitled to demand partition,93 but whether he can do so properly depends on the character of the interest. In most of the cases referred to, the equitable interest of the plaintiff was such as to entitle him to demand a conveyance of the legal title, so that he was, in the view of a court of equity, in effect, the holder of such a title. And so it has occasionally been decided that one can, in the same proceeding, ask for specific performance of a contract to convey to him, and also partition.94 But one of several cestuis que trust, or a cestui que trust as to an undivided share in land, without any right to insist on a termination of the trust and a conveyance of the legal title, is not entitled to demand a partition, which would result in frustrating the purpose of the creator of the trust.95" Such a cestui que trust is indeed not properly a cotenant of the other persons interested in the property.96 And accordingly the question whether a cestui is entitled to have a distinct part of the property set apart to him is primarily a question of his right to terminate the trust.
But that those interested as remainder men in the other undivided interest are not affected see Lawson v. Bonner, 88 Miss. 235, 40 So. 488, 117 Am. St. Rep. 738. This question is expressly-left open in Johnson v. Brown, 74 Kan. 346, 86 Pac. 503.
88. Cummings v. Lohr, 246 111. 577, 92 N. E. 970; Heiminger v. Meissmer, 261 111. 105, 103 N. E. 565; Hart v. Lake, 273 111. 60, 112 N. E. 286, (right of entry).
89. Shepard v. Mt. Vernon Lumber Co., 192 Ala. 322, 68 So. 880; Martin v. Clark, 76 W. Va. 115, 85 S. E. 62; see in Re Young's Estate, 259 Pa. 206, 102 Atl. 506.