Osborne v. . Mull

*206 Merrimon, J., after stating the above. It will be observed that the marriage of the plaintiffs and that of the defendants took place before the statute of 1848 (The Code, § 1840), and it does not therefore affect any right of the hus-band of the feme plaintiff or that of the husband of the feme defendant, in respect to any interest each may have in the real estate of his wife by virtue of the marriage. That ' statute, by its terms and effect, applies only to marriages that have occurred since the third Monday of November, 1848. As the plaintiffs intermarried prior to the year 1848, and there were children of the marriage born alive, and the feme plaintiff was seized during the marriage of the land described in the petition, the husband, the male plaintiff, became tenant by the courtesy iniiiaie. He had a life estate in the lands, in his own right, that might be sold under execution, or he might sell and convey by deed of bargain and sale. The same may be said as to the defendants, and the right of the male defendant. He also was tenant by the courtesy initiate, and had power to sell and convey his life estate in the land justas he might convey the title to any land he might acquire by purchase. Fagan v. Walker, 5 Ired., 634; Wilson v. Arentz, 70 N. C., 670; Lyon v. Akin, 78 N. C., 258 Williams v. Lanier, Busb., 30. Granting that the deeds signed by the feme plaintiff and the feme defendant respectively, on the 8th day of April, 1858. in pursuance of a verbal agreement to divide the land, was void, because they were not privily examined, nevertheless, as the husbands, each had a "life estate in the land, it was competent for them to make the division that was made, to last, at least, until one of them should die- and the deed each of them executed to the other operated to pass his title as it purported to do. The division of the land as to them was binding, and *207 -each is estopped by his deed to deny the division made by them and the right of the other in respect thereto. The feme plaintiff and the feme defendant are not entitled to have partition of the land pending the life estate of their respective husbands. Partition can only be made by tenants in common who are seized of the freehold, and not by those who have the remainder or .reversion. Ordinarily, partition lies only in favor of one who has a seizin and right of immediate possession. Hassell v. Mizell, 6 Ired. Eq., 392 ; Maxwell v. Maxwell, 8 Ired. Eq., 25; Wood v. Sugg, ante, 93; 1 Wash. Real. Pr., 583. There is error. The superior court in term ought to have disaffirmed .the judgment of the clerk of that court awarding the order of partition, and directed the proceeding to be ■dismissed. 'The judgment of the superior court must be set aside and judgment entered there, setting aside the judgment of the clerk of that court and directing the clerk to dismiss the proceeding. To that end, let this opinion be certified to the superior ■court. It is so ordered. Error. Reversed.