
    Amelia Buschmann, Respondent, v. Mamie Hitsch McDermott, Appellant, Impleaded with Elizabeth Hitsch and Others, Defendants.
    First Department,
    January 3, 1913.
    Partition — defense — agreement by tenants in common not to partition or sell lands without consent of all — suspension of power of alienation.
    An agreement by the owners of real property, each with the other, in consideration of mutual covenants that they, or either of them, will not at any time bring or prosecute a suit for the partition of the property without the consent of all the parties, but will continue to hold the same as tenants in common until they can make a private sale, is a good defense to an action for partition subsequently brought by one of the parties without the consent of the others.
    Such an agreement does not unlawfully suspend the power of alienation.
    Appeal by the defendant, Mamie Hitsch McDermott, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 'Tth day of June, 1912, granting the plaintiffs motion for judgment on the pleadings and appointing a referee to take proof.
    
      J. Henry Esser, for the appellant.
    
      Edward Miehling, for the respondent.
   McLaughlin, J.:

This' appeal is from an order granting plaintiff’s motion for judgment on the pleadings. The action is to partition certain real estate. All of the defendants defaulted in pleading except the appellant, who interposed an answer in which she admitted all of the allegations of the complaint and set up as an affirmative defense that all of the owners of the real estate in question had, prior to the commencement of the action, agreed, each with the other, in consideration of mutual covenants, that they, or either of them, would not at any time bring or prosecute an action" in equity for the partition of such real estate in any court without the consent of all the parties to the agreement, but would hold and continue to hold the property as tenants in common until such time as a private sale thereof could be -made without loss upon the original investment or at such lesser figure as should be agreed to.

The learned justice sitting at Special Term held that the agreement did not constitute a defense for the reason, as appears from his opinion, if such effect he given to it it would suspend the power of alienation for a period “not dependent upon lives in being.”

I am of the opinion that the agreement, as pleaded, is not ' susceptible of this construction, and that it constitutes a good defense to the action. Under its terms the three parties to it •— the owners of the property — can at any time they see fit convey the title. The power of alienation is only suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. As was said by Judge Vann, in Williams v. Montgomery (148 N. Y. 519): “The test of alienability of real or personal property is that there are persons in being who can give a perfect title. * * * Where there are living parties who have unitedly the entire right of ownership the statute has no application. * * * The ownership is "absolute whether the power to- sell resides in one individual or in several. If there is a present right to dispose of the entire interest, even if its exercise depends upon the consent of many persons, there is no unlawful suspension of the power of alienation. The ownership, although divided, continues absolute. ”

Here, as said, the three owners can sell at any time they see fit. All they have to do is to agree upon the price. Not only this, but the death of any one of the parties would' terminate the agreement, when a sale or partition could be had. Agreements among owners of real estate not to bring an action to partition during a certain time are not uncommon, and where such' an agreement is made it is a good defense to an action to partition. (Brown v. Coddington, 72 Hun, 147; Ogilby v. Hickok, 144 App. Div. 61; affd., 202 N. Y. 614; Martin v. Martin, 170 Ill. 639; Eberts v. Fisher, 54 Mich. 294; 21 Am. & Eng. Ency. of Law [2d ed.], 1158, and cases cited.)

It follows that the court erred in granting judgment and for that reason the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with ten dollars costs.

Ingraham, P. J., Clarice, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  