Martin v. People's Bank

SIMONTON, Circuit Judge (after stating the facts as above). This court has no right to inquire whether the circuit court of appeals erred in any particular, nor can it sit in review of that court. The petitioners could have prayed a rehearing, or could have invited the review by the supreme court. No inferior tribunal can afford them relief. It follows, therefore, that so much of the prayer of the petition as asks that the decree be amended cannot >be entertained. The decree of the court below, in a cause to which the East Coast Cedar Company was a party, after a full hearing, determined that the partition prayed for by that company could not be made in severalty, and could only be effected by a sale. To that decree John C. Stickney, the supposed life tenant, was not a party, and was not bound by it. Martin, the present petitioner, after the decree was made, purchased Stickney’s interest. He was not bound by the decree. But having this immunity, he, of his own accord, intervened in the cause on appeal, took part therein with the appellants, was represented by counsel, and all points which he then .contended for and now insists on were presented. The one question before the court was, could this partition be effectually made In severalty, or must it be made by a sale and the allotment of shares in money ? On the one side were tenants holding 82 per cent, of the interest in the lands, and on the other side were the shares of the Phenix National Bank and Mary H. Brown, which, during the litigation, had been purchased by the East Coast Cedar Company, and a share of one-fifteenth in the land, the fee in which, was in the East -Coast Cedar Company in remainder, subject to the life estate of Stickney so purchased by Martin. The contention between these two sides was heard by the appellate court, and it decreed that a partition could only be made by a sale. Intervening as Martin did in the cause, he submitted himself to the jurisdiction of the court (President, etc., v. Merritt [C. C.] 59 Fed. 6), and is bound by its decision. He [228] made common cause with his tenant in remainder, and between them the whole fee was represented. The court below held that this estate in remainder must be included in the sale, and could not be set apart in severalty. The court could not decree that the life estate be set apart in severalty without also setting apart in severalty the estate in remainder. So their fortunes were bound together. And when the court ordered a sale of the whole tract, against the opposition of the remainder-men and the life tenant, the interests of the latter were concluded as well as the former. It is true that the petitioner Martin was not mentioned by name. He had been admitted into the case, and had been heard on the same side with the East Coast Cedar Company. The court was deciding a controversy, and in that controversy the affirmative was held by the majority co-tenants. Martin was in the company of the minority. The controversy was decided against him and his allies. The petitioner seems to be apprehensive that his rights will be destroyed if the prayer of his petition be not granted. The circuit court of appeals simply decided the controversy before it, holding that no partition in severalty could be made, and that the property 13e sold and the proceeds divided between the parties in interest in the proportion of their shares. The cause was remanded for such further proceedings as may be necessary. The case having been remanded to this court, it appears that the one-fifteenth of the land is represented by two of the parties to the cause. Of this one-fifteenth the petitioner Martin holds a life estate, and the remainder belongs to the East Coast Cedar Company. A sale of the whole has been ordered. In the proceedings ordering the sale the life tenant has joined. Section 3 of the act of 1887 (chapter 214 of the Statutes of North Carolina) provides exactly for such a case: “Sec. 3. In all proceedings for partition of land whereon there is a life estate, the life tenant may join in the petition or proceeding and on a sale the interest on the value of the share of the life tenant shall be received and paid to such life tenant annually, or in lieu of such annual interest the value of such share during the probable life of such life tenant shall be ascertained and paid out of the proceeds to such life tenant absolutely.” The petitioner, of his own volition, has joined in the proceedings for partition. It is true that he did so for the purpose and with the hope of setting aside the decree of the circuit court, not only as it affected his own interest, but also as it affected the interest of his ally, the East Coast Cedar Company. But, having joined in the proceedings, he necessarily took the consequences. So, in the further proceedings ordered by the appellate court, the circuit court can provide ample protection for the petitioner, and give him all that the state statute has given to life tenants in the same circumstances. The petition is dismissed.