
    THOMAS J. MOORE Et Al. vs. JOHN H. SHANNON Et Al.
    Notwithstanding the act of Congress of 1876 the right to partition in kind or by sale where the parties are not actually seised or in possession of the land never existed in this District.
    In Equity.
    No. 9,561.
    Decided November 7, 1887.
    The Chief Justice and Justices Hagner and James sitting.
    Appeal from a decree refusing a partition.
    The Case is sufficiently stated in the opinion.
    Messes. Edwards & Barnaed, for complainants:
    Under the Statute of Descents of Maryland (1786, chap. 45, secs. 2, 8) it is provided that such estate as passes to the heirs by descent may be partitioned. Thompson, Dig., 17 8-182.
    The language of that act is broad enough to include estates in remainder, as is also the Chancery Act for partition among infants and adults. Id., p. 156, sec. 66.
    It is the established law, in most States, that partition between co-owners is allowed as a matter of right. Freeman, Co-tenancy and Partition, secs. 433-442; Campbell vs. Lowe, 9 Md., 500; Bradley vs. Harkness, 26 Cal., 77; Lake vs. Jarrett, 12 Ind., 395; Hanson vs. Willard, 12 Maine, 147; 5 Wait, Act. and Def., p. 89.
    We admit that in England, and in several of the States, under statutes, tenants in common in a reversion, cannot maintain a suit for partition; and only coparceners in possession were entitled to the writ at the common law. Freeman, sec. 420.
    Notwithstanding this general rule, it has been held in many cases that, for the purpose of making a complete partition, remaindermen may be brought in as defendants, with persons holding particular estates. Id., secs. 439-446; All-natt, Partition, 91.
    Complete partition is favored in the law, rather than a partial or temporary partition; and, in this case, when the matter was before the court in equity, cause No. 1,638, the partition might, and ought to, have been made complete. Freeman, secs. 439-508; Handy vs. Leavitt, 3 Edw. Ch., 229.
    Dower is, in its nature, an incumbrance of the whole estate. The dowress is never a co-tenant with the heirs; and in assigning her dower, the remainder, in the tract assigned, ought to be divided among the heirs. Freeman, Co-tenancy and Part., sec. 432; Bradshaw vs. Callaghan, 8 Johns., 558; Alex. Ch. Pr., 170.
    The fact that co-tenants of a vested remainder are not in actual possession of the ground, is no obstacle in the way of a partition, and is not a valid reason for the rule denying it; for it is held by many courts that co-tenants out of possession may maintain such suit. Freeman, sec. 450; Barnard vs. Pope, 14 Mass., 436; Howey vs. Goings, 13 Ill., 95-108; Cuyler vs. Ferrill, 1 Abb., U. S., 181; Dameron vs. Jameson, 71 Mo., 97.
    In the case last cited it is held that if the title sought to be partitioned is an equitable title, it is not necessary that the plaintiff should be in possession.
    Godfrey vs. Godfrey, 17 Ind., 9, decided that the word holding, in the statute, means owning or having title to, and not simply holding possession of the land itself.
    There is nothing in the character of the estate in remainder that prevents its partition by sale or otherwise. ■ It can be devised, assigned, limited or inherited; and, although the right to possession is postponed to some future time, it is nevertheless an estate m prsesenti. Freeman, sec. 80; Thompson, Dig. 108-148, 343; Nichol vs. Levy, 72 U. S.; 5 Wall., 433, 443; Jackson vs. Sublett, 10 B. Mon., 467; 2 Wash. Real Est., pp. 512-552.
    
      In New Hampshire and Rhode Island statutes have been recently passed expressly authorizing partition of estates in remainder. Gen. Stat. N. H., 1867, p. 463; Gen. Stat. R. I., 1872, p. 519; Freeman, sec. 461.
    The statute of Maryland (Gen. Laws, 1860, p. 91) is clearly broad enough to include tenants in remainder.
    In Wisconsin, remaindermen are expressly excluded from the benefit of the statute for partition. 2 Taylor, Stat. 1678-9.
    In Illinois, the language of the Partition Act is construed as broad enough to include tenants in remainder. Gross, Stat. of Ill., p. 469; Scoville vs. Hilliard, 48 Ill., 453; S. C., 52 Ill., 449; Freeman, sec. 441.
    In Minnesota, under a general statute, the courts hold tenants in remainder entitled to partition. Cook vs. Webb, 19 Minn., 167.
    The same has been heretofore held in New York. Bradshaw vs. Callaghan, 8 Johns., 564; Blakely vs. Calder, 15 N. Y., 623.
    This last case has been reviewed, and is, perhaps, somewhat limited by the later case of Sullivan vs. Sullivan, 66 N. Y, 37, 42.
    As to the point made by defendants, .that the complainants should be all tenants in common, or all coparceners, we say that it is not necessary that they should have the same exact character of estate, or equal estates. The language of our statute is “any estate” and “any estate or interest therein.” Freeman, sec. 455; Mussey vs. Sanborn, 15 Mass., 155; Hobson vs. Sherwood, 4 Beav., 184; Otley vs. M’Alpine, 2 Gratt., 340; Morgan vs. Staley, 11 Ohio, 389.
    A grantee of a co-tenant, or coparcener, has the right to compel a partition. Freeman, sec. 451.
    Mr. R. Ross Perry, for defendants:
    By the decree of partition passed in 1873, in equity cause 1638, to which all of the parties claiming in their own right in the present cause were parties, the Court exhausted its jurisdiction in the premises.
    That decree was not appealed from, but still remains pleno vigore, and there is the end of it until some new right, some fresh condition of facts shall arise which was not before the Court in the cause which culminated in the partition decree. The status established by that decree must remain unaltered.- JRes judicata est. Cromwell vs. Sac Co., 94 U. S., 351.
    The act of Congress, approved August-15, 1886 (19 Stat. at L., p. 202), under the provisions of which the bill in this cause is filed, applies only to tenants in common and coparceners. The parties in interest must all be either tenants in common or coparceners. In this case there were six coparceners, one of whom has died, having devised her one-sixth interest to one of her brothers, also a coparcener. He, therefore, with respect to five-sixths of the total interest in this tract, is a coparcener with his four brothers and sisters, but with respect to the remaining one-sixth interest, which he took by devise, he and they are tenants in common; with respect to the whole interest, they are neither joint tenants nor tenants in common. 4 Kent. Com. marg., p. 366.
    To such a case the statute does not apply. Gaithers vs. Brown, 7 B. Mon., 90; Pond vs. Pond, 13 Mass., 413; Snyder’s App., 36 Pa., 166; Thomas vs. Garvan, 4 Dev., 223; McConnel vs. Kibbe, 43 Ill., 12; Hodgkinson, Petitioner, 12 Pick., 374; Jackson vs. Myers, 14 Johns. (N. Y.), 354; Marmaduke vs. Tennant, 4 B. Mon., 210.
    The plaintiffs have not either the possession or the right of possession of the tract sought to be subdivided or sold. In this jurisdiction at least they cannot have either partition or sale of such tract.
    It is true that by the provisions of section 8, chapter 45, Act of Assembly, 1786, a remedy was apparently given in such case. It was, however, so cumbrous and indirect that practically it was disused.
    To remedy this inconvenience, the act of Congress was passed. It is to be interpreted by the following rules:
    “Statutes are to be interpreted with reference to the principles of the common law in force at the time of their passage.”
    “It is the duty of courts so to construe statutes as to meet the mischief and to advance the remedy, and not to violate fundamental principles.” Potter’s Dwar. Stat.
    It was and is a fundamental principle of the common law that the rights which it deals with are present rights.
    Accordingly it has been held in England that the Partition Acts of 1868 and of 1876, designed to remedy the same inconvenience as that which caused the act of Congress under discussion, had no application to estates which were notin possession. Walker, Partition Acts of 1868, 1876, p. 7; Evans vs. Bagshaw, L. R. 5 Ch. App., 340.
    “ It is a general rule prevailing in England, without exception, and also throughout the majority of the United States, that no person has the right to demand any court to enforce a compulsory partition, unless he has an estate in possession — one by virtue of which he is entitled to enjoy the present rents or the possession of the property as one of the co-tenants thereof.” Freeman, Co-tenancy & Partition, p. 544, 426, sec. 446. See also 1 Greenl. Cruise, pp. 379, 387, 407; 4 Kent Com., pp. 364, 366 and note; Brown vs. Brown, 8 N. H., 93; Whitten vs. Whitten, 36 N. H., 333; Nichols vs. Nichols, 28 Vt., 230; Culver vs. Culver, 2 Root, 27.8; Adams vs. Ames Iron Co., 24 Conn., 230; Bonner vs. Kennebeck Purchase, 7 Mass., 475 ; Rickard vs. Rickard, 13 Pick., 251; Hunnewell vs. Taylor, 6 Cush., 472; Brownell vs. Brownell, 19 Wend., 367; O’Dougherty vs. Aldrich, 5 Denio, 385; Striker vs. Mott., 2 Paige, 387; Lansing vs. Pine, 4 Paige, 639; Blakely vs. Calder,. 15 N. Y., 617; Stevens vs. Enders, 13 N. J. L., 271; Ziegler vs. Grim, 6 Watts (Pa.), 106; Spight vs. Waldron, 51 Miss., 356; Sullivan vs. Sullivan, 66 N. Y., 37; Scarborough vs. Smith, 18 Kan., 399; Schori vs. Stevens, 62 Ind., 441; London vs. Overby, 40 Ark., 155; Wood vs. Sug, 91 N. C., 93.
    It is also an undisputed proposition that a sale will not be granted, except under such circumstances as would have justified an actual partition previous to the passage of a statute authorizing a sale. Freeman, sec. 538.
   Mr. Justice Hagneb

delivered the opinion of the Court:

This bill was filed in August, 1885, by all the surviving children of George W. Talburtt, except the defendant, Mrs. Shannon, against Mr. and Mrs. Shannon and the widow of Talburtt, to procure the partition of six lots of ground in Washington County, to be effected by a sale. The application is resisted by Shannon and wife, but. Mrs. Talburtt, the widow, agrees to accept an allowance from the proceeds in lieu of her dower right in the said lots.

This property has been the subject of varied and prolonged litigation in this Court. George W. Talburtt died in 1865, intestate, seised of a tract called “Chichester” and of other lands within the District of Columbia.

In May, 1869, Shannon and wife filed a bill, numbered 1638, for a partition or sale of all of this real estate.

In December, 1870, the Court appointed commissioners to make partition of all the land; but on the application of the parties this decree was revoked, in January, 1871, and the cause referred to the auditor to examine as to the practicability of a partition.

The auditor’s report having declared the property incapable of advantageous partition, the Court passed a decree for a sale, under which the greater part of the property was sold; and the widow, Catharine A. Talburtt, was allowed and paid her commutation of dower, in the part thus sold.

In January, 1872, at'the instance of the present complainants and of the widow, this decree of sale was in turn revoked; and a decree for partition was, for the second time, passed, as to the property remaining unsold. Under this decree separate parcels of the unsold lands were assigned to the respective heirs, free from all claim of the widow for dower; and the six parcels referred to in the present proceedings were assigned to the widow, “to hold as and for her dower during her natural life'; ” but no disposition was made of the reversion in the said six lots after the death of the widow.

By consent of parties, in January, 1873, the report of the commissioners was finally ratified, and a decree of that date directed the payment of different sums of money by several of the heirs and by the widow, to others of the parties, for owelty of partition. These payments were made; and since that date the children of George W. Talburtt have held undisputed possession of the parcels so allotted to them in severalty by the last decree; and the widow has held and now holds undisputed possession and ownership for life of the six parcels so assigned to her as dower; and it was under these circumstances that the present bill was filed, in the new cause, in August, 1885, which, upon the hearing by the Equity Court was dismissed; and the present appeal is from that decree.

The complainants insist that their right to have a partition of the reversions in the six parcels of land, during the life tenancy of the widow, is secured to them by the Act of Congress of August 15, 1876 (19 Stat. L., 202), which declares that all tenants in common and coparceners of any estate in 'lands, tenements or hereditaments, equitable as well as legal, within the District, may, in the discretion of the Court, be compelled to make or suffer partition of such estate, and that the courts, in decreeing partition, may award a sale if it satisfactorily appears that the estate or any interest therein cannot be divided without loss or injury to the parties interested.

The respondents contend that the act of 1879 does not change the general principles respecting partition among coparceners, which, as they claim, denies the right of parties out of possession to have partition (except upon consent of all parties interested) during the continuance of the estate in possession of the life tenant. We are to inquire whether such was the established law at the- date of the statute; and if this be so, whether its language, plainly, or by necessary implication, is to be construed as having effected a change in this respect.

The defendants have also interposed other objections to the relief sought, which may be briefly noticed, in advance of the main inquiry.

First. They insist that the relief prayed cannot be granted, because the second decree of partition of January, 1873, exhausted the Court of its jurisdiction over the subject, so that the status established by that decree must remain unaltered during the life of the widow. But the two prior decrees containing similar features of a permanent settlement were revoked upon application of all parties, and we cannot agree that this Court, upon similar request and assent, would be powerless to assist the parties in varying again the state of affairs surrounding the property at this time.

Second. It is urged that as one of the original coparceners devised her undivided sixth interest in the lots to one of her surviving brothers, he stands, as to that sixth, as a tenant in common with the other parceners; while he retains, as to them, his position as coparcener with respect to his original share, and that the statute should be construed as allowing partition only where the parties are all tenants in common, or all coparceners; and hence, no partition could be had, under the statute, between persons holding by mixed tenures, as in this case.

But partition under such circumstances could have been had before the statute, as appears from Coke’s statement of the law: 1 Thomas’ Co. Litt. (697): “If two coparceners be, and one doth alien in fee, they are tenants in common, and several writs of prsecipe must be brought against them; and yet the parcener shall have the writ of partition against the alienee at the common law.” “If three coparceners bé, and the eldest doth purchase the part of the youngest, the eldest having one part by descent and the other by purchase, shall have a writ of partition at the common law against the middle sister, et sic de similibus. And so it is in a far stronger case if there be three coparceners, and the eldest talceth husband, and the husband purchase the part of the youngest, the husband for his part is a stranger and no parcener ; and yet he and his wife shall have a writ of partition against the middle sister at the common law, because he is seised of the one part in the right of his wife, who is a parcener.”

Coke declares that “This inheritance of coparceners is the rarest kind of inheritance'that is in the law; and pronounces the common law rules respecting it, to be a “cunning learning.” There would certainly be no justification for limiting the operation of the statute, in this particular by a more technical rule than obtained at the common law under its astute discriminations.

Third. But we are of the opinion that no partition, in kind or by sale, can be had under the Statute of 1876, ■against the consent of any heir, during the life estate of the dowress, while she is entitled to and actually enjoys the possession of the six lots.

The general rule, at the passage of that statute, unquestionably was, that one in remainder or reversion could not have partition during the possession of the life tenant.

Mr. Freeman, in his work on Co-tenancy and Partition, states the law thus, in section 446:

“ It is a general rule prevailing in England, without exception, and also throughout the majority of the United States, that no person has the right to demand any court to enforce a compulsory partition unless he has an estate in possession — one by virtue of which he is entitled to.enjoy the present rents or the possession of the property as one of the co-tenants thereof.” And so are all the authorities.

In Maryland, Warfield vs. Gambrill, 1 Gill & J., 503, the rule is stated that to obtain a partition of land in equity, the complainant must allege and establish a seisin in himself. Indeed, there can be no serious contention as to such being the common law of the matter, and it was justified by the consideration, among others, that serious inconvenience and injustice might result to the life tenant, if the reversion were divided among several different proprietors.

The possession of the dowress during her life is certainly such a life estate as is contemplated by the rule; for by the allotment she alone stands seised during the continuance of her life estate, to the total exclusion of the heirs.

In Childs vs. Smith, 1 Md. Ch., 483, where all the parcels of the estate were assigned by the decree to the children, and the widow’s dower was alloted by the same decree in a distinct portion of each parcel, the chancellor says:

“Whether the assignment of her dower preceded or followed the partition among the heirs in the orqler of time, can, in my judgment, have no influence in determining the extent to which she may use her lands. Her interest is a continuation of the seisin of her husband; the seisin of the heir being defeated ab initio, the moment the certainty of the estate to be held by the wddow is ascertained by the assignment. So soon, then, in this case, as the particular lands which the widow was to hold for her dower were ascertained by the assignment of the commissioners, the right of the heirs was defeated, -whether the partition among them had been made or not, and the dowress was in, in legal intendment, of the seisin of her husband.”

The chancellor refers, in support of his remarks, to 1 Koper on Husband and Wife, 427, and to 4 Kent’s Commentaries, 69, where the same language is used, with the statement that the fact that the widow’s seisin is to be held as of {he husband’s, is the reason why neither livery nor writing was essential to an assignment of dower in pais.

The primary purpose of the present application is a partition in kind, and a sale is only claimed because an actual partition was alleged to be impracticable. A sale can only be decreed in a case where division in specie would be decreed if the lands admitted of actual partition. But if it were proved in such a case that actual partition was practicable, and the Court should, therefore, decree partition, it is obvious the heirs could not take any possession of the parts of the land assigned to them, until the death of the widow; by which time the condition of the members of the family might be greatly changed. Besides, the decree in partition in case No. 1,638, which was assented to by the parties to the original cause, partook of the character of a family settlement as to the lands then involved, by which each agreed to the relinquishment of something in exchange for something yielded by the others; and it might be a-hardship now to compel a- serious modification of that arrangement against the consent of any of the parties.

As this rule of the law, as it existed at the date of the act of 1876, would have applied to a case like the present, the inquiry remaining for consideration, is whether that statute changed the rule. If the complainants’ contention is to prevail, it must appear that the intention to effect the change was declared in express words, or is evidenced by necessary implication. It is plain the statute does not express that purpose in such direct terms, as we would expect to find if Congress intended' to change the existing law, and as has been enacted in the statutes of one or more of States. And a careful examination of the language has satisfied ús that it contains nothing which necessarily implies such a purpose. Construing the statute according to the obligatory rules of construction we have arrived at the opinion that although a tenant in common or coparcener within this District may compel partition, whether his title be legal or equitable, it is still, notwithstanding the act of 1876, indispensable to his right to institute such proceedings that he shall be actually seised or in possession of whatever estate he may claim to be entitled to.

The decree below is, therefore, affirmed.  