
    [Filed April 14, 1890.]
    BENJAMIN WINDSOR, Appellant, v. HIRAM SIMPKINS, Respondent.
    Petition — Seisin.—A plaintiff cannot bring a suit for the partition of land unless he be in the possession thereof. Such suit will not lie against one in the actual possession, who is holding adversely to the plaintiff. In such case the plaintiff must regain possession by action, if necessary, before he can maintain a suit for partition.
    Appeal from Polk county: R. P. Boise, judge.
    
      Geo. G. Bingham, for Appellant.
    
      W. H. Holmes, for Respondent.
   Per Curiam.

The circuit court properly dismissed the appellant’s complaint. The parties to the suit were not holding and in possession as tenants in common of the premises in controversy. There was no unity of possession between them regarding the said premises. According to the referee’s report, Alfred Simpkins, who had purchased the premises and was in possession of them, claiming to be the owner thereof in good faith, sold and conveyed them by warranty deed to the respondent long prior to the commencement of the suit; and the latter paid the consideration price therefor “and in good faith believed that he was getting the full and complete title thereto, and has at all times since denied the rights of possession of the respondent and excluded him therefrom.” The appellant had no seisin of the premises, either in law or in fact, and must recover possession of them in a proper action before he will gain such a standing in court as will enable him to maintain a suit for the partition thereof.

The decree appealed from must be affirmed.  