Calland v. Conway

Dttkebe, C. J. This is a suit in equity for partition. The bill sets forth that the complainants, in the right of the female complainant, are owners in fee of one undivided moiety of the estate in suit, and that the defendant is entitled to the other moiety, as lessee for ten years from September 1,1881. The defendant demurs to the bill and contends that the court in chancery has no power to make the partition. He refers to Pub. Stat. R. I. cap. 230, §§ 2-4. By § 2 partition is compellable between joint tenants, coparceners, and tenants in common, who are seized or possessed of estates of inheritance, “ by writ of partition or bill in equity; ” and by §§ 3 and 4 partition is compellable “ by writ of partition ” between tenants for life or years, or between tenants for life or years and tenants in fee. The court, if dependent for its jurisdiction on §§ 2-4, has jurisdiction only under § 2, and cannot grant relief in this suit. We think, however, the court has jurisdiction independently of them. The words “ or by bill in equity,” contained in § 2, first appear in the General Statutes, issued in 1872. They are not to *11 be found in the corresponding section in the Revised Statutes, issued in 1857. The jurisdiction is, however, recognized in the Revised Statutes in other sections, and was doubtless understood to have been conferred in the grant of full chancery powers. There can be no doubt, we think, that full chancery powers include a power to make partition between tenants in fee and tenants for years. The authorities cited for complainant show it. 1 Story Eq. Juris. § 656; Baring v. Nash, 1 Ves. & Bea. 551, 555; Wotten v. Copeland, 7 Johns. Ch. 140; Wills v. Slade, 6 Ves. Jun. 498; Gaskell v. Gaskell, 6 Sim. 643. Charles J3. Gorman Walter H. Barney, for complainants. Benjamin M. Bosworth, for respondent. The demurrer, therefore, is not maintainable for tbe cause assigned. We notice, however, that the bill does not allege that the parties are “ seized or possessed.” This is necessary. The omission was doubtless inadvertent and can be supplied by amendment. Demurrer overruled.