
    Lauer v. Green et al.
    
      Partition — Right of tenant in common — Section 12026, General Code — Cannot be defeated by will of cotenant, when.
    
    1. The provisions of Section 12026, General Code, confer upon every tenant in common having the possession or an immediate right to the possession of lands, the right to compel partition of the same.
    2. The estate of such tenant in common cannot be affected or his right to compel partition defeated, deferred or limited by the provisions of the will of his cotenant whereby he attempts to entail his estate including the lands owned as a cotenant.
    (No. 15927
    Decided November 26, 1918.)
    Error to the Court of Appeals of Morrow county.
    Plaintiff in error was plaintiff in the court of common pleas where he sought partition of a tract of land containing 160 acres, claiming to be the owner in fee simple of the one-eighth thereof. He averred in his petition that the defendants Howard M. Green, Dahl C. Green and James S. Green are each seized in fee simple of the undivided one-eighth part of said real estate by virtue of a deed from Lenora H. Green; that all the defendants named in his petition, under and by virtue of the last will and testament of James H. Green, who died August 7, 1894, are seized of the undivided four-eighths part of said real estate; that James H. Green, deceased, and Lenora H. Green, his wife, were joint owners in fee simple of the real estate above described at the time of the death of said James H. Green, and that said Lenora H. Green on the 11th day of April, 1905, by deed conveyed her. undivided one-half of said real estate to her four sons, Howard M. Green, Frank R. Green, Dahl C. Green and James S. Green, they being the only children of James H. Green and Lenora H. Green; and that on the 21st day of October, 1916, this plaintiff purchased at sheriff’s sale the interest of the defendant Frank R. Green, the same being the undivided one-eighth thereof. A copy of the will of James H. Green is attached to the petition. A devise to his wife Lenora H. Green of a life estate in all his property is followed by this provision:
    “Item 3. I give and devise to my children living at the death of my said wife, my interest in a certain farm, situated in Washington Township, Morrow County, Ohio, the east part of said farm extending into North Bloomfield Township in the County and State aforesaid containing about five hundred and thirty (530) acres on the following conditions, to-wit: So long as more than one of them shall be living it shall be held by them jointly in equal and common use for their benefit and support, and each shall enjoy an equal share of the products and income thereof, and bear an equal share of the taxes and necessary repairs, and to keep the same free and clear of any incumbrances and neither of my children shall have the right to place any incumbrances thereon, and at the death of any one of them, the interest of the deceased one therein shall go to the survivors or survivor and at the death of the last survivor, then my in-, terest in said farm shall go to the legal heirs of my children, share and share alike, and in case my said wife should remarry this provision shall take effect on such remarriage, and said premises shall be free of any right of dower, therein on her part.”
    Lenora H. Green, as widow, and as executrix of the last will of James H. Green, deceased, and the children of the four sons of James H. Green and Lenora H. Green, are made parties defendant.
    The defendants Howard M. Green, James S. Greenland Dahl C. Green filed an answer wherein they admit the relationship of the various parties as set up in the petition, and admit that James H. Green, deceased, and Lenora H. Green were joint owners in fee simple of the real estate described in the petition at the time of the death of James H. Green. They deny all other allegations of the petition. Defendants allege that whatever right, title or interest said James H. Green had in and to said premises in his lifetime was disposed of by his will, a copy of which is attached to the petition of plaintiff, and that by reason thereof the defendants have no more than a use of said property.
    The case was heard on appeal in the court of appeals. That court found that the estate of James H. Green, being an entailed estate, cannot be partitioned, and that the plaintiff is not entitled to a general order of partition. A decree was entered that the lands described in the petition be first divided into two parts of equal value by commissioners named in the order, and assigned one part to the estate of James H. Green, deceased, and the other to the grantees, under the deed of Lenora H. Green, and their successors in title, and ordered that the last-mentioned part be divided and aparted as follows: One-fourth to the plaintiff, one-fourth to Howard M. Green, one-fourth to Dahl C. Green and one-fourth to James S. Green. This proceeding in error is prosecuted to reverse the judgment of the court of appeals.
    
      Mr. J. W. McCarron, for plaintiff in error.
    
      Mr. W. J. Geer, for defendants in error.
   Matthias, J.

The record discloses that at the death of James H. Green he and Lenora H. Green were the joint owners in fee simple of the real estate described in the petition, and that Lenora H. Green was the owner of the undivided one-half of said tract on April 11, 1905, when she executed a quitclaim deed to her four sons, Howard M. Green, Dahl C. Green, James S. Green and Frank R. Green, which effected a conveyance to each of them of the undivided one-eighth of said real estate. Subsequently an undivided one-eighth thereof was sold by the sheriff of Crawford county upon execution to satisfy a judgment against said Frank R. Green, and was purchased by the plaintiff. Said sale was confirmed, and deed conveying the land to him was duly executed by the sheriff of Crawford county.

The question presented in this case is whether the plaintiff is entitled to. a general order of partition of said real estate without any restriction or limitation by reason of the provisions of the will of James H. Green, whereby he devised his interest in said tract of land and other real estate to his wife during her natural life and at her death to his four sons during their lifetime, and at the death of the last survivor of them to the legal heirs of his said children.

Under the provisions of Section 12026, General Code, tenants in common, and coparceners, of any estate in lands, tenements, or hereditaments within .the state, may be compelled to make or suffer partition thereof in the manner prescribed. But it is contended that the plaintiff is not a cotenant in that portion of the land disposed of by the will of James H. Green, and further that the,land entailed by James H. Green cannot be a subject of this partition suit. The plaintiff’s interest is one-fourth of the share previously owned by Lenora H. Green, and that was the undivided half of the 160-acre tract involved in this suit. It certainly follows that the plaintiff is the owner not of an undivided one-fourth of a specific half of said land, but the owner of the undivided one-eighth of the entire tract. Therefore, to the extent of his interest, he has the same right to a decree of partition that Lenora H. Green would have, had she retained her title. Her title was in no wise subordinate to or dependent upon that of James H. Green; on the contrary they were equal and came from a common source. It has long been settled that when there is an outstanding estate for life vested in a third person in the' whole premises, of which partition is sought, the reversioners or remaindermen cannot have partition; but that one who owns in fee simple an undivided interest in real estate can maintain an action to compel partition as against his cotenants who have only a life estate in another undivided interest. (Tabler v. Wiseman et al., 2 Ohio St., 208, and Johnson v. Brown et al., 74 Kansas, 346.) Here there is no outstanding estate for life vested in a third person in the whole of the premises of which partition is sought; nor is the plaintiff disabled to prosecute partition by reason of being prevented by some intervening estate from recovering possession in an action at law, unless that has been accomplished by the terms of the will of the co-tenant of his predecessor in title. But it is fundamental that a tenant in common cannot convey or encumber the interest of his cotenant, nor by any act of his divest his interest as cotenant in the entire tract, or defeat, defer or limit his rights as a tenant in common, and any attempt to do so is ineffectual. Freeman on Cotenancy and Partition, Sections 172 and 183, and 7 Ruling Case Law, page 879, and cases cited.

If a tenant in common by creating a contingent remainder or by entailing his estate may affect the right or interest of his cotenant, it would be within the power of any tenant in common, by creating such an interest, to prevent partition and deprive his cotenant of his right thereto conferred by statute, which, of course, cannot be permitted. The difficulty of making partition and the inconvenience resulting to other tenants furnish no sufficient reason for denying it. Taylor v. Blake, 109 Mass., 513, and Scovil et al. v. Kennedy et al., 14 Conn., 349.

It follows that the plaintiff is entitled to a general order of partition, and that the finding of the court of appeals that the plaintiff’s right to such order was affected by the provisions of the will of James H. Green was erroneous. For the reasons stated the judgment of the court of appeals is reversed.

Judgment reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Johnson and Donahue, JJ., concur.  