Black v. Washington

Campbell, J., delivered the opinion of the Court: We are not willing to disturb the finding of the chancellor •on the facts as to the dispute about adverse possession by Davis. The objection not taken in the lower court, but made for •the first time here, that this bill is iii effect an action of ejectment (inasmuch as the complainants had neither actual or constructive possession of the land, all of which was held adversely •to them by the appellant), however effective it might have been if made in a proper manner in the chancery court, is not available here. It was waived by the silence of appellant when he might have made it. The proposition that the land was not partible because as to u, one-fourth interest in it the appellant has onty a life estate is not maintainable. It is not essential to the right to partition that the cotenants shall have estates that are equal. One may have a term, another an estate for life, and another an estate in fee. All that is necessary is that they shall be cotenants of what is proposed to be partitioned. A remainder or reversion will not be partitioned ; but that does not hinder an estate in pos■session from being partitioned among the cotenants, and the .fact that there is a remainder or reversion is not a bar to partition among those having an interest in possession. Freeman on Cotenancy and Partition, §§ 439, 440, 455 ; 1 Story’s Eq. Jur. § 656 ; 3 Pomeroy’s Eq. Jur. §§ 1386, 1387 ; Baring v. Nash, 1 Vesey & Beame’s Rep. 550; Nichols v. Nichols, 28 Vermont Rep. 228. Affirmed.