
    Otley v. M’Alpine’s Heirs.
    October Term, 1845,
    Richmond.
    Equity Jurisdiction — Partition—Reversioners.—A tenant by the curtesy of lands purchases the rever-sionary interest of one of three heirs. Another interest is held by infants. Held. That a Court. of Equity will decree a partition of the land, at the suit of the tenant by the curtesy.
    Otley’s wife died, seized of laud in Princess Anne, leaving three children, her heirs at law, James Hancock, Anne Green, and Thomas Calvert; so that Otley was tenant, by curtesy, and subject to his curtesy, the land descended to the three children. Otley purchased James Hancock’s share of the reversion, and thus was tenant for life by curtesy of the whole, and tenant in fee of one third. Thomas Calvert sold" his share of the reversion to James M’Alpine, who died, leaving children his heirs at law, who were infants. A bill in chancery was. filed by Otley, to have partition between himself, as purchaser of James Hancock’s share, and Anne Green and M’Alpine’s heirs, and so to ascertain the third which belonged to him in fee. And the Circuit' Court dismissed the bill, on the ground,. that the plaintiff was not entitled *to demand partition of a reversion at law; and as equity in making partition follows the law, neither, therefore, was he entitled to partition in equity.
    Prom this decree Otley obtained an appeal to this Court.
    Leigh, for the appellant.
    At common law, the writ de partitione facienda lay only for parceners, and where both parties, held insimul et pro indiviso; Co. Litt. 167" a. And it lay only against the tenant of the freehold. It was given to joint tenants, and tenants in common, by statutes 31 Hen. 8, ch. 1, and 32 Hen. 8, ch. 32; 16 Vin. Abr. Partition, S. pi. 11, 12, p. 234-5. And whenever it lay, it lay against an infant; Co. Litt. 171 a. b. As between tenants in common, the remedy is regulated in Vir • ginia by statute, 1 Rev. Code, ch. 98, | 1, which provides that all tenants in common of estates of inheritance, or of estates for’ life, or years, with others svho have estates of inheritance, or freehold, may be compelled to make partition by writ de parti-tione facienda; but such partition between tenants in common for life, or years, with others holding equal or greater estates, shall not be prejudicial to reversioners, or remaindermen, after expiration of the life, or years.
    By the purchase made by Otley' of the interest of one of the three parceners, his estate for life by curtesy in the third part so purchased, merged in the fee; and he became tenant in fee of one third part, in common with himself, as tenant by curtesy of the.other two thirds, and the other two parceners as tenants in reversion. If a stranger bad bought the reversionary right of one parcener, and then bought Otley’s curtesy in that part, and so become tenant in common of the fee in that part with Otley as tenant by curtesy, and the rever-sioners, a writ of partition would have lain for such stranger, against Otley and the other parceners, or for Otley against him. Our statute gives it in such case, and at the same time «protects the interests of the reversioners. ■ And see Co. Iútt.'.Í7S; a.' and b.
    The circumstance of Otley, the tenant by curtesy of two thirds, being himself tenant in fee of one third, does not vary the right to have partition; but it affects the remedy at law, because he cannot sue himself. This is the very foundation for the jurisdiction of a Court of Equity; I mean on general principles; for it presents a case in which there is a right, for which there is no remedy at law.
    It is difficult, perhaps impossible, to ascertain the origin of equitable jurisdiction in cases of partition, or the grounds on which it was assumed. Mitford and Fon-blanque, (1 Fonb. 18, in notes; Mitf. Plead. 110,) both place it on the ground, “that in the case of the partition of an estate, if the titles of the parties are in any degree complicated, it is extremely difficult to proceed in Courts of Common Eaw; and where the tenants in possession are seized of particular estates only, the persons in remainder cannot be bound by the judgment,.-o.n the wriit,o;f partition., The principle’ embraces the case! before the Court. The titles are so complicated, that it is not only difficult, but impossible to proceed at law; for Otley cannot, as tenant in fee of one third, sue himself as tenant by curtesy of two thirds, or vice versa; and yet, if the tenant in fee of the one third were a stranger, the writ of partition would lie for or against him; and the remaindermen,'who could not be bound by judgment at law, (16 Vin. Abr. Partition, S. pi. 16, p. 236,) may be bound by decree in equity. As to those of the rever-sioners who are infants, no injustice can be done them, since the Court will, of course, give them a day after their full age; which is more than the law would have given them. Co. -Eitt. 171, a. and b.
    I do, not understand, that a Court of Equity decrees partition only in such cases where the writ de partitione facienda would lie at law ; I see it no where so stated, «but only that, in analogy to the proceeding at law, equity does not give costs. (Seel Madd. Ch. Prac. 244; 16 Vin. Abr. Partition, %. p. 241; S Supp. Vin. Abr. Partition, R. and Z. 336; Calmady v. Calmady, 2 Ves. jr. R. 568.) Agar v. Fair-fax, 17 Ves. R. 533, is a case of partition decreed in’ equity,- where plainly no writ of partition could have been maintained at law. '.■«In-all’ partitions -at law, or in equity, it is th’é lá'w, óf;’cóurse, that ascertains the rights’qf the parties; but it does not follow, that the equitable remedy only lies where the i'egal remedy lies; the contrary, it seems to me, results from the very fundamental principles, of equity jurisdiction.
    No counsel for the appellees.
    
      
      Equity Jurisdiction — Partition—Reversioners.—The principal case is cited in Arnold v. Bunnell, 42 W. Va. 473, 20 S. E. Rep. 362.
      Partition — Remainderman.—in Merritt v. Hughes, 36 W. Va. 356, 15 S. E. Rep. 58, it is said : “Virginia cases cited for the proposition that a remainder-man may sustain a suit for partition do not apply. In Otley v. M'Alpine, 2 Gratt. 340, the tenant by cur-tesy sued, but he was owner of one of the shares in fee. ana thus entitled to sue. In Wiseley v. Findlay, 3 Rand. 361, Wiseley owned fee, and there was no life interest in the way. In McClintic v. Manns, 4 Munf. 328. there was no life estate, only a charge of a living.”
    
   CABELL, P.,

delivered the opinion of the Court.

The Court is of opinion, that the Court below erred in dismissing the bill of the appellant. Instead of0 dismissing the bill, it ought to have allotted to the appellant, in severalty, one third part of the land, of which partition was claimed. The decree is therefore reversed with costs; and the cause is remanded, to be proceeded in to a final decree, according to the principle now declared.  