
    John Lucas and others vs. William King and others.
    Where a bill prays for partition, and the defendants deny complainant’s title, if the title in dispute is an equitable one, it is the duty of the court to settle it. If it is a legal title, the court may dismiss the bill, or may retain the cause, and afford the party an opportunity of settling his title at law.
    But the bare denial of the complainant's title is no obstacle to the court’s proceeding. The defendant must answer the bill, and if he sets up a title adverse to the complainant, or disputes the complainant’s title, he must discover Ms own title.
    If when the titles are spread before the court upon the pleadings, the court can see there is no valid legal objection to the complainant’s title, there is no reason why the court should not proceed to order the partition.
    But where there were serious questions, both of law and fact, involved in the controversy between the parties as to the title, the court retained the bill, and gave the parties an opportunity of settling the title at law.
    The bill states, that, on the 12th of January, 1812, Benjamin Carman conveyed, by deed of bargain and sale in fee simple, to the said Lucas and Elizabeth Carman, them heirs and assigns, certain lands, in the bill particularly described, in consideration of the sum of $6000 ; that Theodosia Lucas died July 1, 1821, leaving the complainants her heirs at law; that, in 1815, Elizabeth Carman married one William Idell; that Idell and wife occupied, with Theodosia Lucas, the lands in question until Theodosia’6death, and after her death with complainants, and up to 20th August, 1828, when Elizabeth Idell died ; that at her death Elizabeth Idell left one child, Emily, who has married with one William King.
    The bill prays partition.
    William King and Emily his wife answer the bill. They deny that, by the conveyance to Theodosia Lucas and Elizabeth Carmen, they took the estate as tenants in common, but allege that the said deed, having been made on the 16th of January, 1812, that by the statute then in force the said deed created an estate in joint tenancy, with a right of survivorship, incident thereto, and that, on the death of Theodosia Lucas, Elizabeth Carman took the whole estate.
    In further answering, the defendants deny that Elizabeth Carman, after the death of Theodosia Lucas, occupied the premises in common with the complainants, but say, that Elizabeth Carman, after the death of Theodosia Lucas, and after her marriage and up to the time of her death, had the sole use and enjoyment of the said premises, claiming them as her own property; and that, since her death, her daughter Emily and her husband, the defendants, have used and enjoyed them. They further say, that when the deed was made by William Carman to Theodosia Lucas and Elizabeth Carman, to wit, on the 16th of May, 1812, the said Theodosia and Elizabeth gave to William Carman their bond, in the penal sum of $13,000, conditioned to pay $6000, with interest from date, on or before the 16th day of May, then next ensuing, and a mortgage upon the premises to secure the payment of the said bond; that while the said Elizabeth was in the sole occupancy of the said premises, after the death of Theodosia Lucas, 26th December, 1822, the said Benjamin Car-man released and quit-claimed unto the said Elizabeth Idell all rights, actions, and demands whatsoever, both at law and in equity, which he then had against her on the bond and mortgage aforesaid; that afterwards, on the 12th September, 1826, the said Benjamin Carman, for value received, did assign, set over, and transfer the before mentioned bond, and all moneys due and to become due thereon and the said mortgage, unto the said Elizabeth Idell, her executors, administrators, and assigns. The answer further states, that the said Elizabeth was, from the time of the death of the said Theodosia Lucas, and from the time of the marriage of the said Elizabeth, in 1819, in the undisputed and sole possession of the said premises, claiming and using them as her own property, and remained so in possession until she died, in 1828; that after the assignment of the said bond and mortgage, she became invested with all the rights of a mortgagee in possession as against the complainants, if they had any title in the premises ; that since the death of the said Elizabeth, the defendants, King and wife, have been in the undisturbed possession of said premises, claiming it as their own property, and that the same has been claimed by himself, the said William King and wife, and by her mother, for more than thirty years, and they pray the same benefit of the statute of limitations, as if they had formerly pleaded the same; that during all that period the complainants resided in the neighborhood, and knew the defendants claimed the premises as their own, and yet never made any demand of the possession.
    The complainants filed a replication. Proofs were taken on both sides, and the cause argued upon the pleadings and proofs.
    
      W. Halsted, for complainants.
    
      W. L. Dayton, for defendants.
   The Chancellor.

The only relief the bill prays for is, that there may be a partition of the land and premises therein described between the parties.

The defendants deny the complainants’ title. If the title in dispute is an equitable one, it is the duty of this court to settle it. If it is a legal title, the court may dismiss the bill, or may retain the cause, and afford the party an opportunity of settling his title at law. Alnat on Partition 101; Bliman v. Brown, 2 Vern. 232; 1 Story's Eq., note 1, § 650.

I do not understand, however, that the bare denial of the complainants’ title is any obstacle to the court’s proceeding. The defendant must answer the bill, and if he sets up a title adverse to the complainant, or disputes the complainants’ title, he must discover his own title, or show wherein the complainants’ title is defective. If when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to the complainants’ title, there is no reason why the court should not proceed to order the partition. The first ground taken by the defendants illustrates this principle.

The defendants deny that by the deed of conveyance from Benjamin Carman to Theodosia Lucas and Elizabeth Carman, the grantees took an estate as tenants in common. They were evidently under a misapprehension as to the date of that deed, and supposed that it was subsequent to the act of the 4th of February, 1812. The answer insists that the grantees, by that deed, took as joint tenants. If so, then the complainants have no title, because the pleadings admit that Elizabeth Carman survived Theodosia Lucas, and that the complainants claim title by virtue of this deed under Theodosia Lucas, as her heirs at law. The deed, in fact, bears date several months subsequent to the passage of the act. The act of February 4, 1812, declares, “ that no estate after the passage of the act shall be considered and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate; that it is the intention of the parties to create an estate in joint tenancy, and not an estate of tenancy in common.” The deed in question grants the estate to Theodosia Lucas and Elizabeth Car-man, their heirs and assigns, for ever. They took the estate, therefore, as tenants in common, and upon the death of Theodosia Lucas, her estate descended to the complainants, as her heirs at law. Upon a question of legal title so plain as this, there can be no propriety in denying the complainants the relief they seek, until they shall establish their title at law.

But there are other serious questions, both of law and of fact, involved in the controversy between these parties as to the title. Both parties claim under Benjamin Car-man. The defendants claim and set up an adverse possession of more than thirty years. The complainants insist that the possession was not adverse, but that if the defendants and those under whom they claim have been in possession the length of time alleged, the possession was not adverse, but was the possession of a tenant in common, and under the same title by which the complainants claim. Both parties have taken testimony upon this point, and the settlement of it involves important questions of law and fact.

There is another question of controversy. When Benjamin Carman gave to Theodosia Lucas and Elizabeth Carman a deed for the premises, they executed to him their joint and several bond to secure the payment of six thousand dollars, and to secure its payment executed a mortgage on the premises. The defendants allege that, on the 27th of December, 1822, Benjamin Carman, under his hand and seal, executed a release to Elizabeth Car-man, by which he released to her all actions, rights of actions, and demands whatsoever upon the said bond of $6000, and that, on the 12th September, 1826, while she was in the possession of the premises in controversy, Benjamin Carman, under his hand and seal, assigned and transferred to her the mortgage and mortgaged premises, and that the possession has been held under this mortgage ever since; that, by the statute, the equity of redemption is barred, and that the estate is absolute in the defendants, who have held under this mortgage for more than twenty years. In answer to this, the complainants say, that the release to Elizabeth Carman operated in law as a release to both obligors ; that by it, the debt was extinguished, and that the mortgage being only security for the debt, the release of the debt released the premises for the mortgage, and that, consequently, the subsequent assignment of the mortgage created no title to the mortgage or mortgaged premises as against Theodosia Lucas, under whom the complainants directly claim title.

I have stated enough to show that the complainants are not entitled to a partition until the title is established at law.

I shall retain the bill to give the complainants an opportunity of settling the title at law, if they express a desire to continue the suit for that purpose.

Cited in Carlisle v. Cooper, 6, C. E. Gr. 590.  