
    W. M. Albergottie and others vs. B. Chaplin and others.
    
      Jurisdiction — Title to Lands — Partition.
    A bill will not lie to compel persons in adverse possession of lands to surrender them, in order that they may be partitioned between the other parties to the cause, even though the bill alleges that all parties claim under the same will, • and prays construction thereof.
    BEFORE DARGAN, CH., AT CHARLESTON,
    FEBRUARY, 1858.
    Dargan, Ch. The plaintiffs charge, that their great grandfather, Anthony Albergottie, Senr., departed this life early in the year 1815, having duly executed his last will and testament, and leaving the same unrevoked; by which will, in the third clause, he devised his two plantations, Mount Pleasant and Mulberry Hill, to his three grand-sons, in words as follows, viz: “ Thirdly, I give, devise and bequeath to my three grand-sons, William Joseph Albergottie, Anthony Albergottie and Thomas Albergottie, my two plantations, Mount Pleasant and Mulberry Hill, share and share alike, and to the heirs of their body, lawfully begotten, from thenceforth and forever. And should my grand-son, William J. Albergottie, die, leaving no issue, then in that case, to be divided between Anthony Albergottie and Thomas Albergottie; and should my grandson, Anthony Albergottie, die, leaving no issue, then in that case, to be divided between William J. 'Albergottie and Thomas Albergottie; and should my grand-son, Thomas Albergottie, die, leaving no issue, then in that case to be divided between William J. Albergottie and Anthony Alber-gottie.”
    The plaintiffs further state,.that the testator left surviving him at his death his said three grand-sons, and that at some uncertain period afterwards, the two plantations were divided among the devisees, the smaller tract, Mount Pleasant, having in the partition been allotted to Anthony Albergottie, and the larger, Mulberry Hill, having been allotted to William and Thomas Albergottie; and that while the grand-sons lived both the plantations passed out of their possession, but at what time, and in what way, the plaintiffs _ allege that they know not. The plaintiffs further slate, that “ Mount Pleasant is now in the possession of John F. Chaplin, and that Mulberry Hill is now in the possession of Stanhope A. Sams, both of Beaufort District, where the plantations are situated, and both of whom lay claim to the plantations as owners thereof.”
    The plaintiffs further state, that William J. Albergottie died about two years ago, leaving two children surviving him, to wit, the plaintiff) Thomas W. Albergottie, and Rebecca Chaplin, the wife of Benjamin Chaplin ; that Thomas W. Alber-gottie died in January, 1855, leaving a widow, Selina W. Albergottie, and the following children surviving him, namely: the plaintiff) Washington M. Albergottie, Rebecca Albergottie, Thomas C. Albergottie, Mary E. Albergottie, John S. Alber-gottie and William G. Albergottie. That Anthony Albergottie died in the year 1851, without issue, but leaving a widow, Rebecca Albergottie, surviving him.
    The plaintiffs contend, that the testator, Anthony Alber-gottie, Senr., by the third clause of his will, gave to his three grand-sons, a fee conditional in Mount Pleasant and Mulberry Hill, and that they are entitled respectively to the shares of their parents William and Thomas. That they are entitled to the share of Anthony Albergottie, junr., (who never had issue) by the limitation over upon the fee conditional:-or if the words of the will gave a fee simple to the grand-sons, then the limitation upon Anthony’s share, is good as an exec-utory devise upon a fee simple over to them.
    The plaintiffs contending, that themselves and their brothers and sisters, the children of William J. and Thomas Alber-gottie, are by the limitations of said will, entitled to the said two plantations, Mount Pleasant and Mulberry Hill — have made their brothers and sisters, and John F. Chaplin and Stanhope A. Sams parties defendant; charging that Chaplin and Sams are in possession of the lands devised by the will of Anthony Albergottie, Senr., and that they (the plaintiffs) and their brothers and sisters, are fully and absolutely entitled to the said plantations or lands, and to rent for the same, from the time when their rights respectively accrued, they pray that the said John F. Chaplin may be decreed to surrender the plantation called Mount Pleasant, and the said Stanhope A. Sams the place called Mulberry Hill, and to account for the rents, profits, &c. And as against the other defendants, their brothers and sisters aforesaid, the plaintiffs pray a partition of the said lands.
    To this bill, the defendants, Chaplin and Sams, have filed a demurrer.
    The first ground of demurrer is, that the bill asks for a trial of the title to land, and the Court has not jurisdiction in such a case. Butler vs. Jlrdis, 2 McC. Ch. 60; Murray vs. Stephens, -Rich. Eq. Cases, 205; Gibbs vs. Elliott, 5 Rich. Eq. 327.
    I concur in this view, both as to the law and that it applies to this case. That the Court of Equity is incompetent to take pognizance of a case involving title to real estate, is so well settled, that it does not admit of question, nor as a general rule, is it disputed on this occasion. The Court will entertain a case involving title to land, where presenting some matter of acknowledged Equity jurisdiction, the question of title comes up incidentally, as in case of partition, &c. If a bill be filed for partition, and one or more of the defendants, who are or might be distributees with the plaintiffs in the same land, and under the same title, set up adverse and paramount title in themselves, denying all right on the part of the plaintiffs : there the Court, retaining the case, will send the question of title to the Court of Law for a trial by jury, and waiting until the question of title is properly adjudicated, will then order the partition,' or not, according to the circumstances. But this is not such a case. Partition is not sought as against Chaplin and .Sams. They are stated in the bill to be holding in adverse possession, and claiming in their own exclusive right. The plaintiffs have not alleged, nor is it said in the demurrer, that the defendants derived title under the will of Anthony Albergottie, Senr. Nor as to this question, would it be material for it to be so charged or stated. If the defendants assert an adverse legal title in themselves to the land, to the exclusion of the plaintiffs, it becomes a question purely of legal title, and the Court is divested of jurisdiction.
    The plaintiffs charge, that they, together with their brothers and sisters, (whom they have made defendants,) are the legal owners of the lands, as tenants in common, under the will of Anthony Albergottie, Senr., and that Chaplin and Sams are in possession, and without any title, as tenants in common or otherwise: in other words, that they are trespassers. And they pray that the said Chaplin and Sams may be decreed to deliver up the said lands, and account for the rents and profits, &c., and that the same may be divided among themselves, and their co-tenants, their brothers and sisters. This is, to all intents and purposes, an action of trespass to try the title. And the fact that the plaintiffs have joined their alleged co-distri-butees as defendants, and prayed partition as to them, is not sufficient to disguise the true character of this suit; which is a bill to try the title of the lands between themselves, and their alleged co-tenants on the one side, and Chaplin and Sams on the other.
    Again : the defendants demur for multifariousness and mis-joinder. The plaintiffs allege that Chaplin is in possession of the Mount Pleasant plantation, and that Sams is in possession of the Mulberry Hill plantation, each claiming separately, adversely, and in his own right. They allege no joint possession or interest between Chaplin and Sams. Even supposing that the plaintiffs are right in their construction of the will under which they claim, and that they have a good title to both tracts of land, and that they have a right to sue in this Court, the cases which they state against Chaplin and Sams are separate and distinct, and they have no right in one suit against two parties to unite a claim for two distinct subjects matter. This objection is fatal.
    The other two grounds of demurrer, it is unnecessary to consider. One is a question of practice and the other goes to the merits. I offer no opinion, feeling confident that ultimately the case will not be disposed of in this Court.
    It is ordered and decreed that the demurrer be sustained, and that the bill be dismissed with costs.
    The complainants appealed and moved this Court to reverse the decree on the grounds :
    1. Because it is stated in the bill that the lands in question passed into the possession of the testator’s grand-sons, under his will, and afterwards into the possession of Chaplin and Sams, which statements the defendants by their demurrer admit to be true, and the bill being filed for the construction of the will, the Court has jurisdiction, as plaintiffs and defendants claim under the same title, to wit: the will of Anthony Albergottie, Senr.
    
      2. That Chaplin and Sams have a common interest centering in the main subject of the suit, to wit: the construction of the will of A. Albergottie; and it is not improper to join them with complainants and with each other, because their interests in the plantations have become separate and distinct.
    3. Because the question of multifariousness in pleading, is one addressed to the discretion of the Court; and in this case multiplicity of suits would be avoided by the decision of the rights of the parties in the present form of proceeding.
    4. Because the title of the lands has been incidentally brought into question, the main purpose of the bill being to obtain a construction of the will, and in such cases it is the approved practice of this Court to retain the bill and order an issue at law to try the title to the lands.
    5. Because the bill is filed for partition, and it is not competent for one or more defendants to deprive the Court of jurisdiction by setting up an adverse title.
    6. Because in a case where parties have entered upon the lands of infants during their infancy, this Court will not at the instance of the wrong-doer subject the infant complainants to the necessity of relying upon a better title than all the world, which would be necessary in the action at law.
    Martin, for plaintiffs.
    
      De Treville and Brewster, Young, Kirkwood, for defendants.
   The opinion of the Court was delivered by "

Johnston, Ch.

We think the Chancellor’s decree is sustained by principles too well established to admit of doubt.

The demurrdr admits what the plaintiffs themselves allege, that the defendants “ lay claim to the plantations” of which they are in possession “ as owners thereof.’’ There is no alleged privity between the parties, nor any thing to constitute the occupants “tenants in common” with the plaintiffs; so that if this Court should order an issue or an action to try titles, the result of such trial could not bring back the cause here for partition. The case, in no respect, resembles the case of Gibbs vs. Elliot, in which there was a privity among the parties as co-tenants, rendering it proper for this Court to construe the will, in order to ascertain the rights of the parties as co-tenants under it. But this is an open warfare of adverse titles, to oust the defendants, Chaplin and Sams, from the land, in order to partition it among the other parties. This Court is not the forum for such a purpose. The occupants are not compellable to discover their title ; but the plaintiffs must go to law to sustain their title, if they can; which Court in the trial is fully competent to construe the will.

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin and Wardlaw, CC., concurred.

Appeal dismissed.  