Wood v. . Sugg

Ashk, J. The plaintiffs contend in the court below that Emily J. Wood, the widow of the testator, Jonathan Wood, by her marriage had forfeited her dower, and requested the judge so to charge. In this court they contended that the widow had lost- her right of dower by not dissenting from the will of her said husband within six months after the probate thereof, but this point does not seem to have been taken below, and therefore is not the subject of* consideration here. But to give tl\e plaintiffs the benefit of both their contentions, they cannot avail them. The record shows that the widow Emily, after her mar *96 riage with her present husband, Thomas J. Lee, filed her petition for dower in the lands of her first husband, and the land in controversy was assigned to her as dower. The plaintiffs were the children and heirs-at-law of her said husband, Jonathan Wood, and claim that, after the determination of the freehold interest of said Emily by her second marriage, they have a right to the immediate possession of the land as tenants in common with the defendant Sugg, who, by purchase from two of- the heirs, was seized with two undivided shares in the same. Rut the defendant insists that there never has been any determination of this life estate of said Emily; that by purchase from her he is the owner of her interest, and that the.plaintiffs are only entitled to two undivided shares of laud in remainder, after the death of Emily J. Lee; and having no seizin or right of possession, they are consequently not entitled to a partition or sale of the land for the purpose of partition. This position taken by defend-' ant, we think, constitutes a valid defence to the plaintiffs petition. Upon the issue submitted to the jury — “Did Emily J. Wood have dower assigned to her on the lands described in the pleadings? the jury .responded in the affirmative. We must therefore assume that the proceedings in dower were had regularly according to the practice of the court, and that the plaintiffs who are heirs-atdaw were parties to the proceeding. Wade v. Dick, 1 Ired. Eq., 313. When that is so, they are estopped by the judgment in the proceeding for dower. The decision in Gay v. Stancell, 76 N. C, 369, is conclusive upon this point. There, it is held that " where a fact has been decided in a court of record, neither of the parties shall be allowed to call it in question and have it tried over again as long-as the judgment stands unreversed ; therefore, in an action to recover the possession of a tract of land which had been allotted to her (the widow) as dower *97 in an action theretofore had between herself and the plaintiffs (the heirs); it was-held that the plaintiffs were’estopped by the judgment in the former action.” This settles the question as to Emily’s right of dower, and renders immaterial the inquiry whether she had forfeited her right of dower by her marriage with Lee, or by having failed to dissent from the will of her first hus'band within six months. The defendant Sugg, by means of-the several conveyances set forth in the record, became the owner of her life estate, and by purchasing the interest of two of the four heirs of Jonathan Wood, he became, by the merger of a moiety of the life estate of his two undivided shares of the remainder, the owner in fee simple of an undivided half of the land, and the owner of an estate for the life of-Emily J. Wood in the other moiety owned by the plaintiffs. In other-words, the defendant is the owner of one moiety in fee simple, and the plaintiffs are the owners of a moi-et}' of the remainder. At the common law, parceners only were compellable to make partition by a writ of partition, but the benefit of that writ was extended to joint-tenants and tenants in common by the statute of 31 and 32 Henry VIII. 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. The essential provisions of thesestatutes are still in force in this state, with only a modification of the remedy. In 1787 an act was passed by the general assembly which gave to tenants in common of real estate the petition for partition, in place of the ancient writ of partition. Act 1787, ch. 274, § 1, (brought forward in the Revised Statutes and Revised Code). The construction put upon this statute-is, that it applied only to such co-tenants *98 as had seizin where the estate was freehold, but had no application to reversioners or remaindermen. Maxwell v. Maxwell, 8 Ired. Eq., 25; Hassell v. Mizell, 6 Ired. Eq., 392. And in so holding this court has followed the EDglish decisions in construing the statute of Henry VIII. Our act of 1787 has made no change in the principles of law applicable to partition, but has only changed the remedy. Mr. FreeMAN in his wmrlc on Co-tenancy says: It is a general rule prevailing in England without exception, and also throughout a majority of the United States, that no person has the right to demand any court to enforce a compulsory partition, unless he has an estate in possession ; one, by'virtue of which he is entitled to enjoy the present rents or the possession of the property as one of the co-tenants thereof, § 446. The same doctrine is announced and maintained in 1 Wash, on Real Property, ch. 13, § 7, sub-div. 7. In New York it has been held that proceedings in partition can be instituted only by a party who has an estate entitling him to immediate possession. Brownell v. Brownell, 19 Wend. 367. See also Miller ex parte, 90 N. C., 625. In New Plampshire it is held : “ To maintain a proceeding for partition the applicant must show a present right of possession,” 36 N. H., 327. • And again, that “one who is interested with others in a remainder or reversion, after an estate of freehold, cannot maintain a petition for partition of the lands in which he is so interested.” 8 N. H., 93. We might multiply authorities, but we deem those cited .are sufficient to show that the principle is well established, that co-tenants in remainder or reversion have no right to enforce a compulsory partition of land in which they have such estate. By the act of 1812, ch. 847, jurisdiction was given to courts of equity to order the sale of lands for partition, when an actual partition could not be made without injury to some of the parties; but it was held to apply only to *99 such cases where partition might have been made at law. Maxwell v. Maxwell, and Hassell v. Mizell, supra. Now, by the act of 1808-9, ch. 122, § 12, and The Code, § 1903, jurisdiction is given to the clerk of the superior court of the county where the real estate or some part thereof lies. We are of opinion there is no error in the judgment of the superior court. No error. Affirmed.