
    James Perry et al. v. Susan R. Richardson et al.
    In an action under the code, seeking equitable partition together with an account of rents and profits, an answer denying that plaintiffs have any title to or interest in the premises, does not oust the court of jurisdiction.
    Reserved in District Court of Pickaway county.
    This is a petition for partition. It alleges that George S. Richardson died seized in fee-simple of the lands described, which lie in Pickaway county. That defendant, Susan Roe Richardson, is entitled to dower in the land. That said George S. Richardson had. six children, one of whom, Marian Richardson Perry, had intermarried with plaintiff, James Perry, and died leaving three children. The petition gives the names of the other children of George S. Richardson, some of whom had themselves died leaving children, and asks that the widow’s dower be assigned and the land partitioned.
    Plaintiffs also aver that the lands are productive, and are and have been since the death of the intestate in the exclusive jaossession and enjoyment of the defendants, the widow, William, Ann Eliza, and Margaret, children of George 8. Richardson, to the exclusion of plaintiffs and the children of Thomas J. Richardson, also a son of the intestate.
    Petitioners further ask an account of rents and profits for the use of the estate by the defendants from the time of intestate’s death until partition he made, and for such other relief as may be equitable.
    This is the answer of Wm. P. Richardson :
    “And now comes the said William P. Richardson, one of the above-named defendants, and for his separate answer and first defense, says : That he denies that the said George S. Richardson at the time of his death was seized in fee-single or in any other estate in and to the lands described in the said petition of the said 2fiaintiffs, and he denies that the lands passed by descent, at the death of the said George S. Richardson, to the said plaintiffs or to any other |>erson or jiersons; and he denies that the said jfiaintiffs have any title or interest whatever in the said ju-emises in the said petition described, and he, the said defendant, William P. Richardson, avers that at the death of the said George S. Richardson the said premises belonged in fee.-sinrple to him and the said children of the said Thomas Richardson, deceased; and the said William P. Richardson says that at and for a long time before the death of the said George S. Richardson, he, the said William P. Richardson, was in the full, open, and notorious possession of said premises, and claiming them adversely to all other persons except the children of said Thomas J. Richardson; and the said William P. Richardson, at the time of the filing of said petition, was' and still is in possession adversely to all persons except the said children of Thomas J. Richardson, deceased.
    “ For a second defense, respondent says: On July 17,1858, said George S. Richardson sold and agreed to convey the said premises to this respondent and the said Thomas J. Richardson, in consideration that they, the said William P. and Thomas J., would find lodging, board, and all necessary and decent clothing for the said George S. Richardson and Susan R. Richardson, for and during their lives, and the life of the survivor, and this said respondent says that at the said date he and the said Thomas J. took possession of said premises under and by virtue of the said contract, and this respondent has remained in possession under said contract ever since, and has performed all the conditions of the same, and has furnished lodging, board, and all necessary and decent clothing for the said Susan Roe Richardson up to this time, and for the said George S. Richardson to the time of his death; and the said respondent says that from the time of his taking possession, about the 17th day of July, 1858, he has paid the taxes, made all the necessary repairs on said premises, and otherwise improved the same.
    “ For a third defense, this respondent says that on the 17th day of July, a. d. 1858, the said George S. Richardson bargained, sold, and conveyed, by a good and sufficient deed, to this respondent and the said Thomas J. Richardson, the said premises for and in consideration of the sum of one dollar, the receipt of which was acknowledged in said deed, and for other considerations in said deed stated and performed by the said respondent; and this respondent denies each and every allegation of title in the petition on the part of the plaintiffs; and since the date of said deed this respondent has been in the full, open, and notorious possession of said premises against all persons except the said children of Thomas J. Richardson.
    “ For a fourth defense, this respondent says: That on the 17th day of July, A. D. 1858, he, the said George S. Richardson, made a settlement and division of his landed estate to and among all his children. First, he settled the tract of land described in the petition upon his two children, 'William P. Richardson and Thomas J. Richardson, in the manner and terms set forth in the preceding part of this answer, they being the only sons of his at that time. And he settled a certain track of land which he had purchased of James and Elizabeth Laurence, on the 17th day of February, a. n. 1848, containing about one hundred and sixteen (116) acres, and situate in the said county of Pickaway, upon his four daughters, Marion R. Perry, Jane R. Fields, Ann Eliza Richardson, and Margaret Richardson, being the only daughters which he then had, as witnessed by a certain instrument of that date between the said George S. Richardson and William P. Richardson, recorded in book No. 32, page 750, of the record of deeds in said county.
    “ That on the-day of-, a. d. 1867, the said William P. Richardson conveyed the said land to the said four daughters, as he was required to do by-the terms of the said instrument. And the said respondent says and avers that the division and conveyance of the lands aforesaid by George S. Richardson, made on that day, was intended by him to be a settlement upon each of his said children of said lands and an advancement to them of so much of his said estate.
    “ The said William P. Richardson prays the court that the said conveyances so made may be established and affirmed as the said George S. Richardson intended; or if the said conveyance to this respondent for any cause should be set aside, he prays that all the lands the said George S. Richardson owned on the 17th of July, 1858, may be divided among the heirs of the said George S. Richardson according to law and equity.
    “ Henry F. Page,
    “ H. N. Hedges, Sen.,'
    
      “Attorneys for Respondent
    
    
      The reply denies that at the death of George S. Richardson the lands belonged to said ¥m. P. Richardson and the children of the said Thos. J. Richardson, deceased, otherwise than as these parties were heirs of their father, and so entitled to an undivided interest in severalty. Denies that respondent, Wm. P. R., was before and at the death of Geo. S. R. in full and notorious possession, in manner alleged. Avers that if respondent asserts any such claim of title as he sets up, it is void. That respondent lived with his father, Geo. 8. R., ¡is a member of his family on the lands, and this was the only possession he had: that he was unmarried, and lived with his parents as a member of the family.
    In reply to the third answer, it sets up what is claimed to be the deed in question, which is without a seal, not acknowledged, though signed by Geo. S. Richardson; but it is averred that this paper never was delivered, and denied that such a contract was ever entered into by the parties. It avers that said instrument was inchoate and never completed. In short it is denied that this paper was ever effective for any purpose.
    To the fourth answer it replies : admitting the deed of 17th July, 1858, admits that since the death of Geo. S. R., Wm. P. R. has executed the deeds in conformity with the trust, which should be considered an advancement. Apart from this, the settlement and division by George is denied, as also the settlement upon William and Thomas.
    This being the state of the case, defendants make this motion:
    “ The defendants now move to dismiss the action on the ground that it is a proceeding in partition, and the title being denied, this court has no power to try the title, but should leave the plaintiffs to an action at law.”
    The case having been appealed to the District Court, that court made this entry of reservation :
    “ To wit, at the May term of said court, a. d. 1871, on the tenth day of May of the year aforesaid, this cause came on to be heard, on the motion of defendants to dismiss the petition of the plaintiff for want of jurisdiction of the parties in a case of partition, the title of the plaintiff being denied by the answers of the defendants, and that the plaintiffs proceed to try their title by action at law. In consideration whereof the court, being of opinion that questions of importance and difficult to be determined arise upon said motion and upon the pleadings in said case, on motion of counsel for defendants, it is ordered by the court that the matters of said motion be and the saméis reserved for determination by the Supreme Court at the next term thereof.”
    
      M. A. Daugherty, for plaintiffs.
    The civil action given by the code takes the place of actions at law and suits in equity (section 3); and under its form the same rights can be enforced, and the same remedies can be obtained.
    ■ The action in this case takes the place, and has all the scope, of a suit in equity for partition and an account of rents and profits. If there was ever any question in Ohio of the right of tenants in common, or coparceners, to have an action against each other for rents and profits, the act of May 13, 1868 (S. & S. 578), which took effect before the right of action in this case accrued, gives the light to recover “ according to the justice and equity of the case.” And, of course, there can be no question under the code (section 80) of the right to join in one action these two causes of action, both being “ connected with the same subject of action,” the tenancy in common.
    As the plaintiffs had not under the partition statute the right to claim an account of rents and profits, they brought this suit in equity, that is, under the code, where an account for rents and profits was always allowed in this connection. Hoster v. Sledge, 29 Ala. 478; Obert v. Obert, 2 Stock. Chy. 98.
    The jurisdiction of courts of equity is now well established ; 1 Story’s Eq. Jur., sees. 646 to 658.
    But the motion of defendant in this case, which the court is called upon to decide, assumes that any denial, by defendants, of the title in the plaintiffs, would, per se, oust the court of jurisdiction. This would put it in the power of any unscrupulous defendant to oust the court of this general head of jurisdiction, which is absurd. Courts are not accustomed to be at the mercy of a party as to their general jurisdiction.
    This certainly has never been thelaw or practice in Ohio.
    In chancery before the code, Penn v. Cox, 16 Ohio, 30; under the partition statute, Prentiss’ case, 7 Ohio (2 pt.), 129; under the code, Stableton v. Ellison, 21 Ohio St. 527.
    The effort to sustain'this motion by reference to the strict doctrine of seizin, as known to the old common law, can not be successful. Holt v. Hemphill, 3 Ohio, 232, Walker’s Am. Law, 346; Borland v. Marshall, 2 Ohio St. 308, and cases cited; Merritt v. Horne, 5 Ohio St. 307; 4 Day, 305; 4 Mass. 489; 14 Pick. 224; 6 Met. 439; 7 Ohio (1 pt.), 275; Hall v. Ashby, 9 Ohio, 96; Tabler v. Wiseman, 2 Ohio St. 208.
    Counsel for defendant, in referring to the leading case of Wilkin v. Wilkin, 1 J. C. 111, and the cases therein cited, says the doctrine therein stated has never been questioned.
    The assertion is unfortunate, and the numerous authorities he cites in its support are unfortunately generally against him, as an examination of them will show.
    In conclusion, I insist that the following propositions are fully sustained by the authorities already cited, most of them being cases relied on by defendant. I affix to each proposition a few of the authorities supporting it.
    1. Co-tenancy and a right of entry are sufficient to sustain a petition- for partition under the code. Holt v. Hemphill, 3 Ohio, 232; Walker’s Amer. Law, 346; Borland v. Marshall, 2 Ohio St. 308; Merritt v. Horne, 5 Ohio St. 307; Tabler v. Wiseman, 2 Ohio St. 208; Overton v. Woolfolk, 6 Dana, 371.
    2. A mere denial by the defendant of the title of the plaintiff will not oust the court of jurisdiction; but the court will hear the case on its merits, and grant the partition or refuse it, as in legal discretion may be deemed proper. Penn v. Cox, 16 Ohio, 30; Prentiss’ case, 7 Ohio (2 pt.), 129; Stableton v. Ellison, 21 Ohio St. 527.
    3. If the case involve a question of equitable title, presented by the pleadings of either the plaintiff or defendant, the parties, or either of them, as a matter of right, are entitled to the decision of such question by the court. Godfrey v. Littel, 2 R. & M. 630; Coxe v. Smith, 4 J. C. 271; 2 L. Cas. in Eq. 647 (403).
    4. ’ If the case involve both equitable and legal questions as to title, the parties, or either of them, are entitled, as a matter of right, to have them all decided by the court. Overton v. Woolfolk, 6 Dana, 371.
    5. If the case involve only legal questions as to title, the court may, on the hearing, and not before, at its discretion, try and decide them, hold the case to await a decision in ejectment, or dismiss the case without prejudice. Hoffman v. Heard, 22 Mich. 59; Gifford v. Williams, Law Rep., 8 Eq. 494.
    6. In this case the defendant has precluded himself from objecting to the jurisdiction, having in his answer, which is in the nature of a cross-petition, invoked the jurisdiction tor perfecting his equitable title and to give him equitable relief. Ludlow v. Simond, 2 N. Y. Cases in Error, 1, and cases there cited.
    In the same way a party may even deprive himself of the constitutional right of trial by jury. Lee v. Tillotson, 24 Wend. 337.
    
      Henry F. Page, for defendant:
    To maintain an action for partition of lands, the plaintiff must, at the time of the commencement of the action, have an actual or constructive possession in common with the defendants of the land sought to be partitioned. Where the premises are held adversely, the party out of possession can not try the question of his title in this form of action. A subsisting adverse possession is an absolute bar to the action. It is intended for the partition of lands in the possession of part owners, and not for the recovery of the possession of premises adversely held. This was the rule of the common law. If one coparcener disseized another, during the disseizin a writ of partition would not lie between them, and the reason was that they did not hold together and undivided. Coke Litt., sec. 247, 167b; Florence v. Hopkins, 46 N. Y. 184; 5 Denio, 385; 34 Barbour, 56; 17 Abbott’s Pr. R. 452.
    A petition for a partition ordinarily lies only in favor of one who has a seizin and right of immediate possession, and a disseizin or adverse possession negatives the community of possession upon which the right to partition depends. Bonner v. Kennebeck Purchase, 7 Mass. 475; Rikard v. Rikard, 13 Pick. 251; 1 Barr, 325; 9 Watts, 376; 6 Barr, 457; 1 W. & L. 184; Wells v. Prince, 9 Mass. 508; Bradshaw v. Callaghan, 8 Johns. 558; Brownell v. Brownell, 19 Wend. 367; Barnard v. Pope, 14 Mass. 434; Miller v. Dennett, 6 N. H. 109; Call v. Barker, 3 Fairf. 320; Stevens v. Enders, 1 Green (N. J.) 271; Clapp v. Bromagham, 9 Cow. 530; Thomas v. Garvan, 4 Dev. 223; 2 Williams (Vt.) 658.
    It was an established rule of the common law, by which the writ of partition would lie only between coparceners, that the plaintiff must be in possession or seized of the land when the writ was brought (Coke Litt. 167a), and since the remedy by partition has been extended to joint tenants and tenants in common, the same rule has been uniformly adopted, whether the remedy was sought by writ or bill in equity. 1 Swift’s Dig. 103. Our statutes authorizing the Superior Court, as a court of equity, to order partition of real estate held in joint tenancy, tenancy in common or coparcenary does not introduce any different rule on this subject. 24 Conn. 233.
    The court does not sustain the bill unless the title is clear. Bishop of Ely v. Kenrick, Bunb. 322; Cartwright v. Puttney, 2 Atk. 380. These and other cases are approved by Chancellor Kent in the early case of Wilkin v. Wilkin, 1 Johns. Ch. 111; and the doctrine has never since been questioned. Cox v. Smith, 4 Johns. Ch. 271; 3 Id. 302; 2 Barb. Ch. 404; 2 L. Cas. in Eq. 403 (647); 1 Story Eq. sec. 651, note; 4 Kent’s Com. 365; 2 Daniel’s Ch. 1326; Rozier v. Johnson, 35 Mo. 326; Daggy v. Ash, 23 Ind. 338; Longwell v. Batty, 3 Grant (Penn.) 177; Walker v. Lapler, 26 Ill. 472; 2 Stockt. (N. J.) 98; 29 Ala. 478; 36 Miss. (Jones) 471; 36 N. H. 326; 10 Rich. 428; 33 Miss. 149; 39 Id. 392; 3 Sneed, 187; 3 Md. Ch. Dec. 497; 14 Ga. 521; 4 Md. Ch. Dec. 133; 8 Iredell, 25; 5 Iredell Eq. 111; 10 Humph. 64; Hoffman v. Beard, 22 Mich.; 6 Dana, 371; 7 Eng. Ch. 69; 8 Id. 376; 1 M. & K. 330; Penrod v. Danner, 19 Ohio, 221.
    The action by one tenant in common against another is specially provided for in the Code of Civil Procedure, see. 560.
    It is not the object or policy of the law to turn the proceeding for partition into an action of ejectment. Such a proceeding would deprive the defendant of the right to a trial by jury, and would be attended with other serious inconveniences. So, in proceedings by an administrator to sell lands, it is an abuse of the statute to institute them for the mere purpose of settling disputes regarding the title. Wood v. Butler, 23 Ohio St. 520.
   Wright, J.

The question raised is this: Can a proceeding in partition, under the code, be maintained when the title of the parties plaintiff to the premises sought to be divided is denied?

Under the former system of procedure, it has been claimed that, if the question of title is raised, that question must first be settled before steps in partition can be had. Under this system #lso there were two kinds of partition : the statutory proceeding, and that in equity. If partition were sought in equity, and questions of title arose, solely triable in a court of law, an issue out of chancery might be necessary before the cause could proceed. In a suit at law for statutory partition, if title were denied, the cause could not be converted into an action of ejectment. Under the code, however, as we apprehend, the same difficulties do not arise. The civil action is comprehensive in its nature, and when it is used for the partition of lands, it is at least fully as effective as the former equitable proceeding.

In this case the petition asks not only for partition, but also for an account of rents and profits — an end usually sought by bill in chancery.

But, furthermore, the defendant, in his answer avers that the property of intestate had been conveyed to the various heirs, and prays that these conveyances may be affirmed and established; but, if not, that all said property may be divided. This is asking affirmative relief of an equitable nature. The whole case, therefore, becomes analogous to the old partition in equity. It further appears, from the reply, that the title set up by the defendant is not a legal, but an equitable one. The deed spoken of, by which George S. Richardson is said to have conveyed to Thos. J. and Vm. P. Richardson, appears to be not a regular deed, but rather a contract to convey. At least the interposition of a court of equity would be required to make this paper a deed. It has no seal, and is not acknowledged. Under these circumstances, the defendant himself making the case one in equity, the title he claims not being a legal one, asks that the case be dismissed, because he has denied title in the plaintiff.

Under the code, this action standing as it does, it seems to us there is no ground for such a motion. A court may well proceed to fully determine all the rights of the parties as they appear upon this record — that relating to title, as well as others that may arise.

It is not necessary for us to settle now what might be done, or what might not be done, in a strict statutory partition. This is not tb at case. The pleadings, taken together, show a partition asked and an equitable title-set up to defeat the plaintiff in the right he asks.- We do not think the defendant can accomplish such an end in the manner proposed, and the motion to dismiss is overruled.

Scott, Chief Judge, Day, Whitman, and Johnson, JJ., concurred.  