Hunt v. Rabitoay

Grant, J. (after stating the facts). 1. The court below entered a decree dismissing the bill, for the reason that complainants could not, during the lifetime of Mr. Bondie, the life tenant, purchase hostile claims and set them up in opposition to the title of the life tenant. Mr. Clark during his life, and complainants since his death, were in possession of the entire property as owners only of the life estate. They stand in the same position as did Alexander Bondie, and have no more right than he possessed. Their relation is so nearly that of landlord and tenant that the complainants cannot be heard to dispute the title of the life tenant. Board v. Board, L. R. 9 Q. [142] B. 48; Caufman v. Presbyterian Congregation, 6 Bin. 59. Mr. Clark could purchase outstanding titles to set up against the title of the remainder-men upon the termination of the life tenancy. Clark v. Adie, 2 App. Cas. 435; Robertson v. Pickrell, 109 U. S. 608 (3 Sup. Ct. 407); Fuller v. Sweet, 30 Mich. 239 (18 Am. Rep. 122). It would be unnecessary, therefore, to discuss other questions in the case, were it not for a stipulation filed in this court by the solicitors for the respective parties that the case might be heard here as though commenced after the death of Alexander Bondie. This stipulation, however, makes it necessary to dispose of the case upon other grounds. 2. Complainants have no title except by deed from the State as escheated land. The administration of the estate of Marie Louise was settled and final account allowed, the land was not sold, and by the administrator no proceedings were taken to sell. The allowance of claims against an estate conveys no title to the land which may be sold to pay debts, and the deeds, made by the owners of claims against the estate, were worthless to convey title. Two questions are presented for determination: (1) Was there an amicable partition of these lands by deed or by parol ? (2) If such partition was made, was it valid as against Marie Louise, an incompetent ? A third question is also raised, viz.: If the partition was by parol, is it valid ? Our statute was adopted from that of New York, and before its adoption here the question was decided in Jackson v. Harder, 4 Johns. 202 (4 Am. Dec. 262), in which a parol partition was held valid. See, also, Jackson v. Vosburgh, 9 Johns. 270 (6 Am. Dec. 276). We, however, deem it unnecessary to decide this question. We think the recitals in the deeds above mentioned, the possession and occupation of the land by each, and the improvements made thereon for a long series of years, and the sale of a portion of the land north of Ecorse creek as [143] belonging to Marie Louise, and the sale of four parcels by-Jean B. Bondie, furnish sufficient proof, after so long a period, that there was an actual partition of the land by deed or by proceedings in the probate court, which have been lost and were not recorded. The recitals in these old deeds and the conduct of the parties are consistent only with an actual partition. After the expiration of 60 years, it is a just conclusion, under the record in this case, that there was a legal partition. It is urged by complainants that the partition, if one was made, was of the land north of the Ecorse river, and not of the land in dispute, which lay south of it. Without setting out more fully the testimony in detail, we are satisfied that this is not the correct conclusion to be deduced from the facts. There is no testimony in the record to indicate that Mrs. Bartin or her grantees ever made any claim to any portion of the land north of the creek after the partition. On the contrary, as already shown, Mrs. Bartin and her grantees treated the land in dispute as their own, and the guardians of Marie Louise acquiesced. It is also apparent that the land north of the creek was treated as belonging to Marie Louise. 3. We think partition of lands by the guardians of infants and incompetents is fully sustained by the authorities as well as by reason. Either co-tenant could compel a partition. What may be compelled' by the law parties should be allowed to accomplish amicably, so long as no advantage is taken and the partition is equal. Freem. Co-Ten. §§ 414, 415; 2 Co. Litt. §§ 243, 258; Williard v. Williard, 56 Pa. St. 119; Brooks v. Hubble, (Va.) 27 S. E. 585. The territorial law then in force authorized the guardian “to divide the real estate in as full and ample a manner as the idiot, lunatic, non compos or distracted person might or could were they restored to the full use of their rational faculties.” 1 Terr. Laws, 377. Whatever may be the interpretation of this statute, it certainly evidences an intent to repose a broad power in the guardian. [144] There is no evidence in this case to show that this partition was an unequal one. If, however, it were unequal, these complainants are not in position to raise that question and to avoid it. They are neither privies in blood nor are they the legal representatives of Marie Louise Niger, and only these two classes can avoid the deed of an insane grantor. They simply hold as purchasers of escheated lands. 1 Jones, Real Prop. § 64; Hunt v. Weir, 4 Dana, 347; Beverley's Case, 4 Coke, 123b; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. 236 (19 Am. Dec. 71). Decree is affirmed. The other Justices concurred.