Page images
PDF
EPUB

creditors of any co-owner, or of any prior owner of the whole tract of land, as, for example, the deceased ancestor of the present co-owners, or of any prior owner of part of the land, not having obtained judgment, and not therefore holding any lien upon the premises or a part of them, would not be proper defendants for any purpose, any more than the general creditors of a mortgagor in the case of a foreclosure. The holders of liens upon the entire tract to be divided, such as judgment creditors of the former owner, or the holders of mortgages given by a former owner, would not be necessary defendants, nor would they be even proper parties to the action. Their liens would be utterly unaffected by the decree and subsequent division in pursuance thereof. As their judgments or mortgages were incumbrances upon the whole land prior to the titles of the present co-owners, the division of the real estate among these co-owners would leave the same liens undisturbed and effectual upon the same premises in their full force and effect. The transaction would be the same in substance as the conveyance by a mortgagor of the mortgaged premises to a grantee who takes them subject to the existing lien. Such incumbrancers are therefore, according to the doctrines of equity, not even proper parties defendant, when the action is simply for a division of the soil.

§ 271. *374. Holders of Liens on Undivided Shares. The case of those who hold liens upon the undivided shares of individual co-owners, may appear at first view to be somewhat different from the one last described, but it really falls within the same principle. As long as the co-owner's share remains undivided, the incumbrance upon it is equally vague; that is, it is not a lien upon any specific and determined part of the whole common tract, but upon an undivided and undistinguished fraction of it. As the single co-owner himself cannot say of any particular spot of the territory in question," This is mine, I am entitled to the exclusive possession of this," so his judgment creditor or mortgagee cannot say of any particular lot, "I have a lien upon this, and can enforce that lien by selling this specific portion." The sole effect of the decree and the decision in execution thereof is to allot a certain specified and determined piece of land to the co-owner in place of his former undefined share, and to transfer the lien-holder's administrator of a deceased joint tenant Throckmorton v. Pence (1893), 121 Mo. is not a proper party to a partition suit: 50, 25 S. W. 843.]

incumbrance to this specified and determined portion of the soil. The incumbrance itself is neither increased nor diminished in amount; it is merely changed from its floating to a fixed character. It is plain, therefore, that the incumbrancer thus described has no real legal or equitable interest in the partition suit when the same is instituted and carried on to its end for the mere purpose of dividing the land among the co-owners. His rights are unaffected; his lien undisturbed. The only apparent interest which he has, or can possibly have, is not in the action itself, nor even in the judgment ordering a partition, but in the execution of that judgment. It may be said that he has an interest to see that the division is properly made, so that the coowner on whose share he has the lien will receive a fair allotment, and that thus the value of his own security will be preserved. He has such an interest undoubtedly, but it is not a legal one; nor does it commence until the cause is decided and the judgment rendered. Moreover, the actual division is made by officers of the court, the sheriff, or commissioners appointed in the case, and they act under the direction and control of the court itself. As in the case of all other administrative official acts the law presumes that they will be rightly done, it does not require a person to be made a party to the action in order that he may be in a position to protect himself against the wrongful acts of the officers who are appointed to carry a judgment of the court into effect. Persons are made parties in order that they may have an opportunity of presenting their rights and claims to the judge before he makes his decree, to the end that they may be considered and passed upon and established by the judgment itself. When that judgment can in no possible manner affect his rights, he is not even a proper party to the suit. I have thus stated the principles of equity unmodified by statute which govern the action of partition when the same is brought for an actual division of the land. The statutory provisions in relation to the action may have altered these rules in some particulars; but I have only designed to present the equity doctrine pure and simple with the reasons therefor; so that local changes, wherever they have been made, will be the more readily understood and their effect appreciated.1

1 Prior to any contrary statute, the rule was well settled that incumbrancers on the undivided shares, or on the whole

tract, are not proper parties. Harwood v. Kirby, 1 Paige, 469, 471; Sebring v. Mersereau, Hopk. 501, 503; s. c. on app.

§ 272. * 375. Different Rule where Object of Suit is to sell Land and divide Proceeds. There is another aspect, however, of the partition suit which places it in very different relations to the holders of liens and incumbrancers either upon the whole land paramount to the titles of the co-owners, or upon the undivided shares of the co-owners themselves. Its object is sometimes to sell the whole land, and to divide the proceeds, and not to divide the land itself. When this is the nature of the judgment, it is plain that the rights and interests of the lien-holders must be adjusted and determined in the one action, and especially so when the land is to be sold free from all incumbrance, so that the lien of all the mortgages and judgments will be transferred from the real estate to the fund which is the proceeds thereof, and they will be paid off and satisfied therefrom. There is then a necessary antagonism between the co-owners and all classes and species of incumbrancers upon their undivided shares. Their rights are clashing; they are opposing claimants of the same fund; the interests of all are to be finally established and satisfied at the one judicial proceeding. It is evident, therefore, upon the most familiar principles of equity jurisprudence in its relation to parties, that in the aspect of the action now described, all the holders of liens and incumbrances upon the undivided shares of individual co-owners, created subsequent to the inception of their titles, are not only proper but necessary defendants in order that a decree should be made determining all these conflicting rights and claims, while the holders of prior liens, if not necessary, are at

9 Cow. 344, 345; Wotten v. Copeland, 7 Johns. Ch. 140, 141; Agar v. Fairfax, 17 Ves. 542, 544; Baring v. Nash, 1 Ves. & B. 551. All the tenants in common, or owners of undivided shares, must be parties either plaintiffs or defendants. Burhans v. Burhans, 2 Barb. Ch. 398; Teal v. Woodworth, 3 Paige, 470. When a tenant in common has assigned his share for the benefit of his creditors, such creditors are not proper parties. Van Arsdale v. Drake, 2 Barb. 599. A widow entitled to dower in an undivided share is a necessary party. Wilkinson v. Parish, 3 Paige, 653; Green v. Putnam, 1 Barb. 500; Gregory v. Gregory, 69 N. C. 522, 526. But a widow who is entitled to dower in the whole tract is not a neces

sary defendant unless a sale of the land is to be made. Tanner v. Niles, 1 Barb. 560. It is held in New York that, independent of statute, subsequent contingent remainder-men, or persons holding under executory devises, who may hereafter come into being, are bound by a decree in partition made by a court of equity, when the present owners of a vested estate of inheritance in the land have been made parties. Mead v. Mitchell, 17 N. Y. 210, 214, 215; Clemens v. Clemens, 37 N. Y. 59. [Held in Chalmers v. Trent (1894), 11 Utah 88, 39 Pac. 488, that the holder of a lien upon a joint tenant's share was a necessary party to a suit for partition, and that such necessary party might be brought in by cross-bill.]

least proper parties for a complete adjudication. It may sometimes be impossible at the commencement of the action to determine whether the judgment will be given for a simple partition of the land itself, or for a sale of the land and a division of the proceeds after satisfying the incumbrances, and therefore the classes of persons described may be joined as defendants from motives of precaution. The results thus reached from an analysis of the action itself with its peculiar relief, and the application thereto of familiar equity doctrines, have, however, been largely modified in many States by statutory regulations.2

1 It is held in Indiana, that all persons interested should be made parties, and that lien-holders on undivided shares may be joined. Milligan v. Poole, 35 Ind. 64, 68. In Missouri, all the co-owners, including infants by their curator, may unite in the proceeding as plaintiffs, so that it will be entirely ex parte. Larned v. Renshaw, 37 Mo. 458; Waugh v. Blumenthal, 28 Mo. 462. Where a deed of trust covered a portion of the land, the trustee and cestui que trust were held to have been properly made defendants in order to bind their interest, although no relief was asked against them. Reinhardt v. Wendeck, 40 Mo. 577; Harbison v. Sanford, 90 Mo. 477. Such a deed of trust is equivalent to a mortgage, so that these defendants were, in fact, incumbrancers. As to the parties in Ohio, see Tabler v. Wiseman, 2 Ohio St. 207; Williams v. Van Tuyl, 2 Ohio St. 336. In New York, it is said that all incumbrancers should be brought in as parties in order that the land may be sold free. Bogardus v. Parker, 7 How. Pr. 305.

2 [Most of the States have special statutes respecting parties to suits for partition. The following brief synopsis of these statutes will indicate their general scope and effect.

Arizona: Any owner or claimant of real estate or any interest therein, or a part owner of personalty, may compel a partition. Rev. St., 1901, §§ 3492-3515.

Arkansas: Every person having an interest in the premises, including tenants for years, for life, by curtesy, or in dower, those entitled to the reversion, remainder, or inheritance, and all who, upon any contingency, may become entitled to any beneficial interest in the premises, whether in

possession or otherwise, shall be made parties. Sand. & Hill's Dig. §§ 5415–5417.

California: "The summons must be directed to all the joint tenants and tenants in common, and all persons having any interest in, or any liens of record by mortgage, judgment, or otherwise upon the property, or upon any particular portion thereof; and generally to all persons unknown who have or claim any interest in the property." Code Civ. Pro., § 756.

Colorado: Same as in Arkansas. Code 1883, Chap. XXIV. §§ 2, 3.

Idaho: Same as in California. Code Civ. Pro., 1901, § 3398.

Indiana: Any person holding lands as joint tenant or tenant in common, whether in his own right or as executor or trustee, may compel partition, and trustees, administrators, and executors, may be made parties to answer as to any interest they may have in the property. Burns' St., 1901, § 1200.

Iowa: Persons having apparent or contingent interests in the property may be made parties. Creditors having general specific liens upon the entire property, may be made parties, and those holding liens upon one or more of the undivided interests shall be made parties. Code, 1897, §§ 4243, 4244, 4250.

Kansas: "Creditors having a specific or general lien upon all or any portion of the property may be made parties." Gen. St., 1901, § 5103.

Kentucky: "All persons interested in the property who have not united in the petition shall be summoned." Code, § 499.

Minnesota : "The summons shall be addressed by name to all the owners and lien-holders who are known, and generally

[ocr errors]

§ 273. 376. Joinder of Wife of Tenant in Common. Administrator of Deceased Tenant in Common. In New York. In New York, when the action for a partition is brought by one tenant in common in fee, his wife is a necessary party, but rather as a defendant than as a plaintiff. Her inchoate right of dower is entitled to protection. If one tenant in common dies, so that his estate

to all persons unknown, having or claiming an interest in the property." St., 1894, § 5771.

Missouri: "Every person having any interest in such premises, whether in possession or otherwise, shall be made a party to such petition." Rev. St., 1899, § 4376. Montana: "Every person having an undivided share, in possession or otherwise in the property, as tenant in fee, for life, or for years; every person entitled to the reversion, remainder or inheritance of an undivided share, after the determination of the particular estate therein; every person who, by any contingency, contained in a devise, or grant, or otherwise, is or may become entitled to a beneficial interest in an undivided share thereof; every person having an inchoate right of dower in the property or any part thereof, which has not been admeasured, must be a party to an action for partition. But no person other than a joint tenant or a tenant in common of the property, shall be a plaintiff in the action." The plaintiff may, at his election, make a tenant in dower, for life, or for years, of the entire property, or a creditor or other person, having a lien or interest, which attaches to the entire property, a defendant in the action." Also a section identical with the California statute given above. Code Civ. Pro., §§ 1342, 1343, 1347.

[ocr errors]

Nebraska: "All tenants in common, or joint tenants of any estate in land may be compelled to make or suffer partition of such estate or estates." "Creditors having a specific or general lien upon all or any portion of the property may or may not be made parties, at the option of the plaintiff." Comp. St. 1901, §§ 6323,

6325.

Nevada: Same as in California. Comp. Laws, 1900, § 3365.

New York: Has the same provisions quoted above from Montana, with others

too long to be set out here. Code Civ. Pro., §§ 1538, 1539.

North Dakota: Same as California. Rev. Codes, 1899, § 5799.

Ohio: Each tenant in common, coparcener, or other interested person, shall be named as defendant in the petition. Bates' St., § 5756.

Oklahoma: "Creditors having a specific or general lien upon all or any portion of the property, may be made parties." St., 1893, § 4513.

Oregon: "The plaintiff may, at his election, make a tenant in dower by the curtesy for life or for years of the entire property or any part thereof, or creditors having a lien upon the property or any portion thereof, other than by judgment or decree, defendants in the suit." Hill's Laws, § 425.

South Dakota: Same as California. Ann. St., 1901, § 6597.

Utah: Same as California. Rev. St., 1898, § 3526.

Washington: "The plaintiff may, at his option, make creditors having a lien upon the property, or any portion thereof, other than by a judgment or decree, defendants in the suit." Bal. Codes, § 5559.

Wisconsin: "Every person having an interest, as aforesaid [enumerating substantially the same parties as in the Montana statute], whether in possession or otherwise, and every person entitled to dower in such premises, if the same has not been admeasured, may be made a party to such action." "The plaintiff need not, in the first instance, but may, at his election, make any creditor having a lien upon the premises or any part thereof, or any undivided interest or estate therein a defendant." St. 1898, §§ 3102, 3103.

66

Wyoming: Same as Ohio. Rev. St., 1899, § 4083.]

1 Rosekrans v. White, 7 Lans. 486. [But it was held in Haggerty v. Wagner,

« PreviousContinue »