
    Jno. and Elizabeth Leverton vs. Adam F. Waters et als.
    
    1-, PARTITION of Land. Power of Chancery Courts to remove doud on title, and then •partition. Previous to the Act of 1852, (Code 4321,) a Court of Chancery might have taken jurisdiction of a bill for partition of land, and at the same time disposed of a cloud or incumbrance, created by a trust deed; and having done this, then decreed a partition.
    2. Same. Same. Equitable titles. Where the object of the bill is to partition land — -but the titles are equitable, or there are equities to settle — a Court of Equity may be resorted to for this purpose; and having done so, will decree a partition under the same bill.
    3. Same. Same. If there is no objection to the jurisdiction of the Court by demurer, it will proceed to a final decree for partition. Under our present system of pleading, where the objection to the jurisdiction is not taken by demurrer, and the defendants answer, and the cause is proceeded with to a final hearing, upon pleadings and proofs, and no obstacle exists to a decree, which shall be a complete and final settlement of the case, the parties will not be repelled from a Court of Equity, to go through another process of litigation, merely because they have attempted to clear their title and obtain a partition in the same suit.
    PROM BLOUNT.
    Tbis cause was heard at the December Term, 1867. A decree ordering a partition of the land was pronounced, and an appeal by respondents to this Court. Chancellor Seth J. W. Luckey presiding, by interchange.
    John Baxter,-for complainants.
    W. D. McGin-ley, for respondents.
   George Andrews, J.,

delivered the opinion of the Court.

The bill in this cause is filed for the purpose of obtaining partition of a tract of land formerly owned by John Waters, the father of complainant, Elizabeth. John "Waters died about twenty years before the filing of the bill. . After his decease, his widow lived upon the place, without any assignment of dower, for some eleven or twelve years, and until her death. Adam F. Waters, a son of John Waters, also lived upon the place with his father and mother, and has continued to live there until the present time. George Waters, an illegitimate son of John Waters, and the complainant, Elizabeth Leverton, also lived upon portions of the farm.

It appears by the bill, that some years prior to his decease, John Waters made a deed of trust to one Murphy, nominally to secure an indebtedness to his sons George and Adam F., which deed of trust is charged to have been without consideration, and that it was never intended by the parties that it should be executed.

Murphy, the grantee in the deed of trust, and the heirs of John Waters, are made parties to the bill; and it is prayed that the title be divested out of Murphy, or the deed of trust be declared void, and that partition may be made.

Murphy, the trustee, and George Waters, one of the cestas que trust in the deed of trust, answer the bill, and state that the deed of trust was not made to secure any valid indebtedness, and was not intended to be executed; and that it was made to hinder one Fagala in the collection of a debt owing to him by John Waters.

Adam F. Waters, a son of John Waters, and one of the beneficiaries in the deed of trust, answers the bill, and alleges that ihe deed of trust was made to secure a claim in bis favor, against John Waters, for about three years’ services rendered by him for the said John. He also alleges that there was a contract between himself, his brother George, and John Waters, .under which he and the said George were to support the said John and his wife during their lives, and were to have the land as their compensation for this service; that his brother George, being tired of the contract, assigned his interest in it to respondent, Adam; and that he has faithfully carried out and performed his part of it, and has always claimed the farm as his own under the contract. He claims the farm as his own, and denies the right of complainants and the other heirs, to have partition. No demurrer is filed to the bill, or objections made to the jurisdiction of the court to decree partition.

The Chancellor decreed that the complainants were entitled to have partition made of the premises; and from this decree Adam F. Waters has appealed to this court.

It is now insisted that no decree for partition can be made in this case, because the title is not clear and indisputable; and Groves vs. Groves, 3 Sneed, 187, is cited to sustain this position. A number of decisions have been made by this court, of which that above cited is one, to the effect that a Court of Chancery will not entertain a suit for partition of land, if it appear that the title is in dispute. These decisions were all made, however, upon the law of this State, as it stood previous to the enactment of the statute of 1852, (Code, § 4321,) which provides that the filing of an answer shall be a waiver of objection to the jurisdiction of the court.

The refusal of Courts of Chancery to entertain bills for partition, where a disputed title : is to be litigated in the same suit, is based rather upon the inconvenience of litigating several unconnected matters in the same suit, and upon the objection of multifariousness, than upon a total want of jurisdiction to dispose of the case. Even before the Act of 1852, above referred to, I think that the Court of Chancery might have assumed jurisdiction upon this bill, for the purpose of disposing of the cloud or incumbrance created by the trust deed, and having done so, have proceeded to decree the partition prayed for. “Even where the object is to partition, but the titles are equitable, or there are equities to settle, a Court of Equity may be resorted to for this purpose; and having done so, will decree partition under the same bill:” Carter vs. Taylor, 3 Head, 35; Almony vs. Hicks, 3 Head, 39.

But, under our present system of pleading, where the objection is not taken by demurrer, and the defendant answers, and the parties carry on the cause to a final hearing upon pleadings and proofs, and no obstacle exists to a decree which shall be a complete and final settlement of the case, the Court will not turn the parties out of court to go through another process of litigation, merely because they have attempted to clear the title, and to obtain partition in the same suit.

Upon the facts oí the case the complainants are entitled to relief. The trust deed is not produced or accounted for, and there is no proof of its contents, or what indebtedness it purports to secure. It must have been about or before the year 1840. If any bona fide indebtedness was ever secured by it, the presumption of law, unrebutted by any evidence in the case, is, that it was paid previous to the filing of the bill in this cause, in 1861. There is no proof that Adam F. Waters ever held possession under it, or claimed title under it, or that any attempt was ever made, or desire expressed, on the part of any one, to have the trust executed.

There is no proof of the existence of any contract between John Waters and Adam F. Waters, such as is alleged in the answer of the latter, nor of the existence of any valid lien or claim in favor of Adam F. Waterá upon the property.

The decree must be, that said deed of trust constitutes no valid claim or lien upon the property in question; and the Chancellor’s decree directing a partition, will be affirmed, and the cause remanded for further proceedings.  