Aydlett v. . Pendleton

Shepherd, J.: At common law there could be no compulsory partition between tenants in common, and it was within the power of each co-tenant to annoy and injure the others by an unreasonable assertion of his undoubted right to be in possession of every part of the lands of the co-tenancy. There being no right to the exclusive possession of any particular part, neither co-tenant had that incentive to improve or even to cultivate the land so held in common, as would invariably attend a tenancy in severalty; and as the chief evils of the former species of tenancy grew out of the right pf each tenant to the immediate possession of the whole, the statutes of 31 and 32 Henry VIH, compelling partition by writ, have been held in England and America to apply only to such tenants in common as have a present right of possession. “ By the former statute, none but tenants of the freehold who had estates of inheritance could have partition, and only against tenants of the freehold. By the latter, tenants for life or years might have partition, but not to affect the reversioner or remainderman.” Wood v. Sugg, 91 N. C., 93. This has always been the law in North Carolina until the Act of 1887, ch. 214, in which it is provided-, “ that the existence of a life-estate in any land shall not be a bar to a sale for partition of the remainder or reversion thereof, and for the purposes of partition the tenants in common shall be deemed seized and possessed as if no life-estate existed. But this shall not interfere with the possession of the life-tenant during the existence of his estate.” It is entirely clear that the statute does not apply to contingent remainders or other uncertain *31 future interests, and as to these it is well settled that they cannot be sold for partition. Simpson v. Wallace, 83 N. C., 477; Williams v. Hassell, 74 N. C., 434; Watson v. Watson, 3 Jones Eq., 400; Miller, ex parte, 90 N. C., 625; Irvin v. Clark, 98 N. C., 445. Such being the law, we are unable to see how the Court could have ordered a sale in the present case. Conceding it to be true, as contended by the petitioner, that the issue of Kate and George can never take as such, and that their existence at the time of the death of said George and Kate is only a contingency, upon the happening of which the estates of the latter are to be enlarged into fees-simple — thus putting into operation the rule in Shelley’s case — such estates are nevertheless subject to open and be defeated or modified by certain contingencies which can only be determined at the death of the said George and Kate. Thus, if both of these parties should die without leaving issue, or the Bsue of. such, then the whole estate, subject to these limitations (being two-thirds interest in the property) will go by way of remainder in fee to R. D. Williams. If, however, one of the said parties shall die leaving no such issue, then one moiety.of his or her interest is to go to said R. D. Williams in fee, and the other to the survivor during his or her natural life, and then to his or her issue; but failing in issue, or the issue of such, at the death of the survivor, then to said R. D. Williams in fee. Thus it will be seen that even according to this construction of the deed, there are future contingent interests, and though these may be represented by some person in esse, it cannot authorize the Court in decreeing a sale for partition where there is objection by some of the parties interested. It is true that in some instances a person may represent the interesis of othe'rs of his class who are not in esse, but the Court only decrees a sale in such cases where the interests of the parties will be materially and essentially promoted. Such is not the case before us. It is simply a peti *32 tion for a sale for partition, and it is an inflexible rule of tills Court that no such sale will be decreed where there are contingent remainders, or other future conditional interests, unless all of the persons, who may by any possibility be interested, unite in asking for such relief. Affirmed.