
    STAUB v. STAUB.
    Equity; Partition; Atpeai, and Error; Deeds; Joint Tenancy; Survivorship.
    1. A suit for partition cannot be made tlie means of trying a disputed title, even though there are no disputed questions of fact in the case. (Following Roller v. Clark, 19 App. D. 0. 539; Jordan v. O’Brien, 33 App. D. C. 189; Easier v. Williams, 34 App. D. C. 319, and distinguishing Taylor v. Leesnitger, 37 App. D. C. 356.)
    2. Where a bill for partition was dismissed on the ground that there was a disputed question of title involved and that the plaintiffs had an adequate remedy at law, this court on an appeal by tlie plaintiffs from the decree of dismissal entertained the appeal, the record showing there was no disputed question of fact involved, in view of § 274a of the Act of Congress of ilarch 3, 1915 (38 Stat. at L. 950, chap. 90), providing that if it be found, at any stage of a case, that a suit at law should have been brought in equity, or vico versa, the court shall order an amendment of the pleadings necessary to conform them to the proper practice.
    On Petition for a Rehearing.
    3. A deed which was delivered prior to the enactment of the District of Columbia Code must be construed in accordance with the law as it existed before the Code went into effect.
    4. The devisees of the survivor of five sisters take an estate in fee in land conveyed, prior to the enactment of the District of Columbia Code, to all of them as joint tenants for life and the life of the longest liver, the grantor reserving the fee to himself; but should they or any of (hem survive him. then the fee to vest in the survivor or survivors, and her or their heirs — where the grantor predeceased the last surviving sister, as the joint tenancy of the grantees in the, life estate was enlarged into a joint tenancy in fee in the. survivor or survivors of the grantor. (Citing- O’Brien v. Jiowjheriy, 1 App. IX C. 148; A Isop v. i'edarwisch, í) App. D. G. 408; *SY¡te v. Seits, 11 App. IX 0. 358.)
    No. 3051.
    Submitted November 8, 1917. Appeal dismissed December
    3, 1917.
    l-’etition for rehearing denied and decree affirmed February 4, 1918.
    IFkarinc on an appeal from a decree of the Supreme Court of the .District of Columbia, sitting as an equity court, dismissing a bill for partition.
    
      Affirmed.
    
    Tbe facts are stated in the opinion.
    
      Mr. A. E. L. Leckie, Mr. C. 7?. Colvin, Mr. Joseph W. Cox, and Mr. Joseph T. tiherier for the appellants.
    
      Mr. Thomas 77. Pallerson for the appellees.
   Mr. Justice Robb

delivered the opinion of the Court:

This is an appeal from a decree in the supreme court of the District dismissing a hill for the partition of certain real estate in the District of Columbia, known as part of lot 25 in Eeatty and Howkins addition to Georgetown.

Appellants’ (Henry C. Staub, William J. Staub, Catherine Perry, et al.) claim of title is based upon a deed daled April !), 1878, from Jacob F. Staub, the then owner of the above real estate, to bis five sisters, the contention of appellants being* that they, as heirs at law of four of these sisters, are tenants in common with the appellees (Millard F. Staub, Clifton Murray Doenor, and John C. Thompson, executor), who arc the devisees and executor under the will of the fifth sister, whose death was subsequent to tliat of tbe oilier four. It therefore clearly appears that the petition of appellants is adverse to the rights claimed by the appellees.

A motion was made in the court below to dismiss the petition upon the ground that appellants have .a full, complete, and adequate remedy at law, but this motion was overruled.. The same point is made here, and it must be sustained, since a bill for partition cannot be made the means of trying a disputed title. Clark v. Roller, 199 U. S. 541, 545, 50 L. ed. 300, 302, 26 Sup. Ct. Rep. 141; Jordan v. O’Brien, 33 App. D. C. 189; Hasler v. Williams, 34 App. D. C. 319. It is true that in Taylor v. Leesnitzer, 37 App. D. C. 356, a similar proceeding, wc determined the rights of the parties, but in that ease there was no motion to dismiss upon the ground here suggested. It is significant, however, that when the case was before the Supreme Court of the United States upon appeal from a prior decision of this court, that court pointed orit that the bill was adverse to the defendant’s rights, and cited Clark v. Holler, in which, as above-noted, it was ruled that a bill for partition cannot be made the means of trying a disputed title. This, of course, was a plain intimation that the proceeding was premature. While there arc no disputed facts in the present case, there is no reason Avhy the regular procedure should not have been folloAved.

The appeal, therefore, will be dismissed, Avith costs, but without prejudice. Roller v. Clark, 19 App. D. C. 545.

Appeal dismissed.

Thereafter the appellants presented a petition for a rehearing, as a result of which the Court delivered, through Mr.' Justice Robb, the following opinion:

The appellants have filed a petition for a rehearing, based Aipon section 274a of the Act of March 8-, 1915 (38 Stat. at L. 956, chap. 90), to AA'hich our attention Avas not directed either in the briefs or in argument, and which provides that if it be found, at any stage of a case, that a suit at la\v should have been brought in equity, or vice versa, the court shall order any amendment to the pleadings necessary to conform them to the proper practice.

We think the facts of this case bring it within the provisions of the above act, because appellants’ claim of title is based upon a deed, and, as found in our previous opinion, there are no disputed questions of fact. The result of sending the case back, therefore, would be, not to have disputed questions of fact determined by jury, but merely to have the same court pass upon the same question of law, and this is the test. United States use of John Davis Co. v. Illinois Surety Co. 226 Fed. 663; Collins v. Bradley Co. 227 Fed. 199; National Surety Co. v. United States, L.R.A.1917A, 336, 143 C. C. A. 99, 228 Fed. 577; Palmer v. Doull Miller Co. 233 Fed. 309. We therefore will proceed to a determination of the case on the merits.

On April 9, 1878, Jacob F. Staub executed a deed conveying the real estate here in question to his five sisters, “as joint tenants for and during the term of their natural lives and the life of the longest liver * * * to have and to hold the said real ('state described as aforesaid to the said parties of the second part, for and during the term of their natural lives and of the longest liver thereof, as joint tenants; said Jacob F. Staub reserving the fee simple in said real estate to himself; hut should said parties of the second part or any of them survive said Jacob F. Htaub, then and in that event, the fee in said real estate shall vest in said survivor or survivors of (said Jacob F. Staub’s said sisters), the parties of the second part, her or their heirs and her and their assigns.” It is the contention of appellants that, since they are heirs at law of four of the sisters, they are tenants in common under this deed with the appellees, who are the devisees and oxeen tors under the wi)\ oí the hith sister, 'whose death was subsequent to that of the other four. As this deed took effect long prior to the enactment of the Code, it must be construed iu accordance with the then prevailing rule, as determined by this court.

In O’Brien v. Dougherty. 1 App. D. C. 148, 163, construing a will made in 1871, it was pointed out that the common-law principle upon the subject then prevailed here, and that the words, “after her death (the life tenant), to revert to my surviving children,” imported a joint tenancy. In Alsop v. Fedarwisch 9 App. D. C. 408, the grant in the deed was to the “parties of the second part and tlieir heirs and assigns forever.” The court said that “the terms of the deed, both in the general granting clause and in the habendum clause, are those that have been used from time immemorial for the creation of joint tenancies, and which have always and uniformly been construed to create estates in joint tenancy:” Seitz v. Seitz, 11 App. D. C. 358, involved the construction of a deed dated April 11, 187!) (a year later than the deed here involved) ; and it was held that, notwithstanding the habendum and tenendum clauses contained the words, “to have and to hold the said two undivided third parts of the hereinbefore described premises, with the appurtenances thereof, unto and to the use of the said parties of the third part, tlieir heirs and assigns, to their sole use, benefit, and behoof forever,” an estate in joint tenancy was created* The court directed attention to the words of the granting clause1, “unto the said parties of the third part, tlieir heirs and assigns,” and observed that such words “from time immemorial have always and invariably, in the absence of statutory provisions to the contrary, been construed as creating a joint tenancy.” The court attached no consequence to the use of the word “sole” in the habendum clause, ruling that it did not mean “several.” Williams, in his work on Neal Property, 4th ed. page 129, says: “The lands intended to he given to joint tenants in fee simple are limited to them and their heirs, or to them, their heirs and assigns, ■ although the heirs of one of them only will succeed to-the .inheritance, provided the joint tenancy be allowed to continue.” See also Freeman, Cotenancy & Partition, 2d ed* secs. 24 and 25.

In the deed before ns a joint life tenancy is created in the grantor’s sisters. In the second part of the habendum clause the grantor undertakes to dispose of the remainder by providing that if all his sisters survive him the fee shall vest in them and their heirs and assigns, or if any of them survive him the fee shall vest in such survivor or survivors, her or their heirs and assigns. It is clear, of course, under the decisions to which we have referred, that had all the sisters survived the grantor they would have taken the fee as joint tenants; for the language is: “Put should said parties of the second part * * * survive said Jacob i. Staub. then and iu lliat event, tlie fee in said real . estate shall vest in said * * survivors ':t‘ * * their heirs and * * * assigns.” Clearly it was not intended to create a joint tenancy in the event of the survival of all the sisters and a tenancy in common in the event of the survival of some of them. The words, “or any of them,” in the second part of this clause, refer merely to a class, that is to say, they aptly describe the survivor or survivors, whether one or four. The °first part of this clause specifically creates a joint life tenancy in the sisters. The purpose of the second part is to enlarge that estate into a joint tenancy in fee in the survivor or survivors of the grantor. In other words, reading the clause as a whole, we think it quite apparent that the grantor did not intend to create a joint life estate in the first part and a remainder in common in the second part.

The decree must be affirmed, with costs. Affirmed.  