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 .
5. Freeman, Cotenancy, Sec. 447; Pomeroy, Eq. Jur. Sec.1388; Carlson v. Sullivan, 146 Fed. 476, 77 C. C. A. 32; Matthews v. Glockel, 82 Neb. 207, 117 N. W. 404; Ellis v. Feist, 65 N. J. Eq. 548, 56 Atl. 369; Frye v. Moffet, 50 Ore 495, 93 Pac. 353; Brock v. Eastman, 28 Vt. 660, 67 Am. Dec. 733.
6. Head v. Phillips, 70 Ark. 432, 68 S. W. 878; Harrison v. International Silver Co., 78 Conn. 417, 62 Atl. 342; Knight v. Knight, 10 Del. Ch. 304, 89 Atl. 595; Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, 93 Am. St. Rep. 272 (unless he joins action for possession); Hut-son v. Hutson, 139 Mo. 229, 40 S. W. 886; Keneaster v. Erb, 83 X. J. Eq. 625, 92 Atl. 377; Chouteau v. Chouteau, 49 Okla. 105, 152
Pac. 373 ( unless he joins action for possession); Sterling v. Sterling, 43 Ore. 200, 72 Pac. 741.
[Sec. 204 is in possession.7 And in a number of states the courts, usually by force of statute, have authority to decree partition at the suit of one who has been dispossessed.8
- Character of decree. In proceedings for partition, the court first determines the share to which each cotenant is entitled, and then the actual partition of the land by metes and bounds is made by commissioners or referees or a sheriff's jury, and their report, if satisfactory, is ratified by the court, and a final judgment or decree in accordance therewith is entered9 Such a decree, if rendered by a court of equity, operat ing, like other decrees in equity, in personam and not in rem,10 does not, apart from statute, vest the title to his allotted share in each co-owner, and the co-owners are in such a case required by the court to make conveyances to each other. By statute, however, in most states, the decree, or a conveyance in accordance therewith by the commissioners or referees, is sufficient to pass the title in severalty to the various parties.11
If the property cannot be equally divided, a court of equity may equalize the shares by a decree that one taking the larger share shall pay a certain sum, called
"owelty" (equality) of partition, to one receiving a less share, as a condition of carrying out the partition.12 And the statute occasionally contains a specific provision for such an equalization.13
7. James v. Groff, 157 Mo. 402, 57 S. W. 1081; Hosford v. Merwin, 5 Barb. <N. Y.) 62; Scott v. Guernsey, 60 Barb. (N. Y.) 178; Freeman, Cotenancy, Sec. 449.
8. Long v. Long, 195 Ala. 560, 70 So. 733; Girtman v. Starbuck, 48 Fla. 265, 37 So. 731; Mott v. Danville Seminary, 129 111. 403, 21 N. E. 927; Call v. Barker, 12 Me. 320; Marshall v. Crehore, 13 Mete. (Mass.) 464; Wood v. Le Baron, 8 Cush. (Mass.) 473; Boothe v. Cheek, 253 Mo. 119, 161 S. W. 791; Vincent v. Hardin, 38 S. D. 414,
161 N. W. 613; Bonham v. Weymouth, 39 Minn. 92, 38 N. W. 805; Weston v. Stoddard, 137 N. Y. 119, 20 L..R. A. 624, 33 Am. St. Rep. 697, 33 N. E. 62; Dillard v. Jef-feries, 118 Va. 81, 86 S. E. 844; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; Chapman v. Allen, 11 Wash. 627, 40 Pac. 219.
9. Freeman, Cotenancy, c. 26.
10. Story, Eq. Jur. Sec. 652.
11. Freeman, Cotenancy, Sec. 527; 2 Dembitz, Land Titles, 1173. See Huston Enforcement of Decrees in Equity, Ch. 2.
By statute in most, if not all, of the states, the court may order a sale of the property if it is impossible to divide it equally, or to do so without prejudice to the interests of some of the parties, the division being then made, of the proceeds of sale instead of the land itself. Apart from statute, the court has no power to order such a sale unless all the parties in interest agree thereto, and, even under the statutes, a sale will not he ordered unless the state of facts named in the statute clearly appear.14 The sale is, generally speak ing, conducted in the same manner as other judicial sales, and is subject to the supervision and approval of the court.
By the statute of at least two states, if property passing by descent to two or more persons is not susceptible of partition in kind, the property may be awarded, in whole or in portions, to one or to all of them, they paying therefor at a valuation or valuations previously fixed under the direction of the court.15
- Persons bound. The cases are generally to the effect that if all living persons who are interested in the property are parties to the proceeding,16 it is
12. Freeman, Cotenancy, Sec. 507; 3 Pomeroy, Eq. Jur. Sec. 1389; Cox v. McMullin, 14 Grat. (Va.) 82; Cheatham v. Crews, 88 N. C. 38; Jameson v. Rixey, 94 Va. 342, 64 Am. St. Rep. 726, 26 S. E. 861; Hoerr v. Hoerr, 140 Minn. 223, 165 N. W. 472, 167 N. W. 735; Baltimore etc. R. Co. v. Trimble, 51 Md. 99.
13. See Burger v. Beste, 98 Mich. 156, 57 N. W. 99; Smith v. Smith, 10 Paige (N. Y.), 470.
14. Freeman, Cotenancy, Sec. 537 et seq.; 3 Pomeroy, Eq. Jur. Sec. 1390; 2 Dembitz, Land Titles, Sec.Sec. 153, 1156; Prewitt v. Hurt, 17S Ky. 526, 199 S. W. 33.
15. Maryland Code, Art 46. Sec.Sec. 43-51; Pennsylvania Act 1832, Sec. 38.
16. That all persons in esse must be parties, see Whitesides v. Cooper, 115 N. C. 570, 20 S. E. 295; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811; Moseley v.
R. P.-46 immaterial that other persons may subsequently come into existence who will be entitled to share. The persons in esse represent not only themselves but also those who may subsequently be born, and the latter are concluded by the decree,17 provided such parties were actually before the court so as to insure actual and efficient protection to those not then in being.18 Provision must be made by the decree to protect those subsequently to be born, in the form of an allotment either of part of the land or of part of the proceeds of sale.19
As upon a voluntary partition, though the wife of a cotenant does not join therein, her claim to dower is restricted to the portion allotted to her husband,20 so upon an involuntary partition, it appears, though she is not a party to the proceeding, her claim to dower is confined to such portion.21 In the case of a sale for purposes of partition, she is barred of her contingent right of dower, provided she was a party to the proHankinson, 22 S. C. 323; Glover v. Bradley, 233 Fed. 721, 147 C. C A. 487, A. & E. Ann. Cas. 1917A 921.
17. Wills v. Slade, 6 Ves. Jr. 498; Gaskell v. Gaskell. 6 Sim. 643; Bedford v. Bedford, 105 Ark. 587, 152 S. W. 129; Mayer v. Hoover, 81 Ga. 308, 7 S. E. 562; Coquillard v. Coquillard, 62 Ind. App. 426, 113 N. E. 474; Acord v. Beaty, 244 Mo. 126, 41 L. R. A. (N. S.) 400, 148 S. W. 901; Brevoort v. Brevoort, 70 N. Y. 136; Kent v. Church of St. Michaels, 136 N. Y. 10, 18 L. R. A. 331, 32 Am. St. Rep. 693, 32 N. E. 704; Freeman v. Freeman, 9 Heisk. (Tenn.) 301; Ridley v. Halliday, 106 Tenn. 607, 61 S. W. 1025, 53 L. R. A. 477, 82 Am. St. Rep. 902; Baylor's Lessee v. Dejarnette, 13 Gratt. (Va.) 152; Carneal v. Lynch, 91 Va. 114, 20 S. E. 959. Compare Long v. Long, 62 Md. 33; Ex parte Yancey, 124 N. C. 151, 32 S. E. 491. As to the doctrine of representation see editorial notes, 15 Columbia Law Rev. 346, 16 Id. 674.
18. McArthur v. Scott, 113 U. S. 340, 28 L. Ed. 1025; Culley v. Eford, 187 Ala. 165, 65 So. 381; Hale v. Hale, 146 111. 227, 256, 33 N. E. 858; Downey v. Seib, 185 N. Y. 427, 78 N. E. 66.
19. See Smith v. Secor, 157 N. Y. 402, 52 N. E. 179; Ruggles v. Tyson, 104 Wis. 500, 79 N. W. 766; Bofil v. Fisher, 3 Rich. Eq. (S. C).
20. Ante Sec. 203, note 50.
21. Hinds v. Stevens, 45 Mo. 209.
Sec. 204 ] ceeding, and, by some cases, upon the theory that the right of dower is subject to any incident which attaches to the husband's holding, and that the liability to sale in partition is such an incident, her contingent dower right has been regarded as barred although she was not a party to the partition proceeding.22 should accrue to joint tenants and tenants in common in case of compulsory partition.28 Such warranty was made available at common law by the remedy of voucher, which is now obsolete, and it has been indicated that the proper remedy at the present day is by a proceeding in equity.29 This implied warranty is, it appears, available only to a party to the partition before alienation by him, that is, if he aliens the portion of the land received by him on the partition, neither he nor his alienee can thereafter avail himself of the implied warranty.30
- Effect on title. The courts in this country have adopted the view that involuntary partition, like voluntary partition,23 does not effect any change of title,24 One important result of this view, as indicated in considering the subject of voluntary partition,25 is that a mortgage or other lien upon an undivided share is transferred, upon the partition, to the portion allotted to the owner of such share.26 And another result is that if one of the cotenants is a married woman, the fact that the apportionment is in terms in favor of her husband, or of her and her husband, gives the husband no interest in the land.27
- Implication of warranty. Upon a compulsory partition at common law between coparceners, a warranty was implied in favor of each, which served as protection in case of failure of title, it not being considered just that one compelled to be a party to a partition should suffer thereby; and the statute of 31 Hen. VIII. c. 1 (A. D. 1539), provided that the same light
22. Post, Sec. 218, note 51.
23. Ante Sec. 203, note 40-58.
24. Avery v. Akins, 74 Ind. 283; Wade v. Deray, 50 Cal. 376; Pacific Bank v. Hannah, 90 Fed. 72.
25. Ante Sec. 203, notes 55, 56.
26. Mickels v. Ellsesser, 149 Ind. 415. 49 N. E. 373; Loomis v. Riley, 24 111. 307; Wright v. Stice. 173 111. 571, 51 N. E. 71; Thruston v. Minke, 32 Md. 571; Hunt v. Meeker County Abstract
& Loan Co., 135 Minn. 134, 160 N. W. 496; Jackson v. Pierce, 10 Johns. (N. Y.) 415; Board of School, etc., Commissioners, 10 Ore. 86; Wright v. Strother, 76 Va. 857; But that the partition is not binding on a mortgagee not made a party, see Colton v. Smith, 11 Pick. (Mass.) 311, 22 Am. Dec. 375.
27. Blocher v. Carmony, 1 Serg. & R. (Pa.) 460. Snavely v. Wagner, 3 Pa. 275, 45 Am. Dec. 640.
28. Rawle, Covenants, Sec. 277; Litt. Sec. 241. See Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Rep. 245, 25 S. W. 889; Grigsby v. Peak, 68 Tex. 235, 2 Am. St. Rep. 487; Morris v. Harris, 9 Gill. 19; Du-gan v. Hollins, 4 Md. Ch. 139; Walker v. Hall, 15 Ohio 355; Cheatham v. Crews, 88 N. C. 38.
29. Dugan v. Hollins, 4 Md. Ch. 139; Walker v. Hall, 15 Ohio St. 355; Sawyers v. Cator, 8
Humph. (Tenn.) 256, 287. See Rawle, Covenants for Title, Sec. 279. 30. Allnat, Partition 159; Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Rep. 245, 25 S. W. 889; Smith v. Sweringen, 26 Mo. 567; Weston v. John L. Roper Lumber Co., 162 N. C. 165, 77 S. E. 430, 169 N. C. 398, 86 S. E. 363; Weiser v. Weiser, 5 Watts (Pa.) 279, 30 Am. Dec. 318; Sawyers v. Cator, 8 Humph. 256, 47 Am. Dec. 608.