
    Blakeley against Calder.
    The Supreme Court, in an action for the partition of land, to which all persons having any interest in the land were parties, rendered a judgment directing the sale of the premises. The purchaser at the sale declined to complete his purchase, on the ground that the plaintiff in the action was not in possession nor entitled to the immediate possession of any portion of the land, but was only a tenant in common, with others, of an estate in remainder, after the death of one of the defendants, and that the court had consequently no jurisdiction to entertain the action; Held, that whether a party having a vested future estate in lands, without a present right to possession, is entitled to institute proceedings for partition or not, yet the court having general original jurisdiction of the subject matter, and jurisdiction of the parties in interest, they were concluded by its judgment, and that the purchaser at the sale under it derived a perfect title.
    
      It seems that, under the Revised Statutes, and ch. 430 of 1847, a tenant in common of a vested remainder in real estate, though his right to possession is postponed during the continuance of a life estate, may institute proceedings for the partition of the land, whether the intervening estate is held as an entirety or by several as joint tenants or tenants in common. Per Dsnio C. J., Comstock, Seldf.n and Paige, Js., concurring.
    
      Appeal by Herman Aldrich from an order of the Supreme Court, compelling him to complete the purchase of certain real estate at a public sale under the judgment in the above action.
    The action was commenced for the partition of real estate situate in the city of New-York, including that bid off by Aldrich, and the judgment in the action directed the real estate, sought to be partitioned, to be sold. Aldrich refused to complete his purchase, on the ground that the plaintiff had not such possession of the land in question qs entitled her to commence and prosecute the action, and that for that reason the court had no jurisdiction to order the sale.
    The judgment declared and adjudged that the plaintiff and seventeen of the defendants were “ severally seized of and entitled to” the lands in question, “as tenants in common thereof, in fee simple, subject to the several rights and interests of the other parties as stated in the referee’s report and it then declared that three of the defendants were severally entitled to annuities, amounting in all to $425, during the life of each, payable out of the rents, issues and profits of the premises, and that the plaintiff and several of the defendants, naming them, were entitled to the surplus of the rents and profits, after the payment therefrom of the several life annuities, during the lives of the annuitants and the life of the longest liver of them, specifying the proportion of such surplus to which each was entitled. ” <
    The judgment further declared that the plaintiff was entitled to an estate in fee simple in one equal undivided fifteenth of the premises sought tó be partitioned, after the death of Catharine Jackson, one of the annuitants, subject to the charge of the life annuities of the other two annuitants.
    The complaint in the action alleged that Maria H. Williamson died seized of the premises in question, leaving a will by which she ordered and directed her executors to lease these premises, and out of the net rents to pay the life annuities mentioned in the judgment, and also annuities for life to three other persons who had died prior to the commencement of the action, and to pay the surplus of such rents to the plaintiff and twelve other individuals named, and after the death of all the annuitants but two, devised the same premises to the plaintiff and fourteen other individuals, naming them, in fee, charged with the payment of the two annuities during the life of the annuitants.
    The complaint also set forth the interest of the several parties in the premises, and alleged that the plaintiff was seized in fee, as a tenant in common with others, of an equal undivided fifteenth part thereof, and also of an equal seventh of another fifteenth, the whole premises being first charged with the payment of the life annuities mentioned in the complaint. All the devisees who were alive, and the heirs and representatives of such as were deceased, including all the heirs at law of the testatrix, and also the surviving executor, were made parties to the action, and all the proceedings in the action were regular. The judgment is predicated upon the report of a referee, finding the interests of the several parties in the premises, and also finding that the premises could not be partitioned without material injury to the parties; and by the judgment the report was confirmed.
    At the sale under the judgment, which took place October 30th, 1856, the appellant, Herman D. Aldrich, bid off that part of the premises designated as lot number one hundred and thirty, Duane-street, at $27,400; paid down ten percent of the purchase price, and signed a memorandum by which he agreed to comply with the terms of sale, which were, that ten per cent should be paid down and the remainder on the 1st day of December, 1856, on the delivery of the deed of. the referee conducting the sale.
    On the 24th of December, 1856, the referee tendered the deed to Aldrich and requested him to comply with the terms of the sale, which he refused to do.
    
      The plaintiff subsequently presented to the Supreme Court at special term her petition praying that Aldrich might be compelled to complete the purchase, and Aldrich at the same time applied to the court to be discharged therefrom on the grounds above mentioned; and the court ordered Aldrich to complete his purchase by paying to the referee the remainder of his bid, with interest thereon, by the 17th of January, 1857, and in case of his default that the referee resell the premises, and if on such resale the premises should bring less than the bid of Aldrich, that he pay the difference, with the costs and expenses of the resale.
    On appeal, this case was affirmed by the Supreme Court at general term, and Aldrich appealed to this court from the order of affirmance.
    
      N. Hill, for the appellant.
    
      E. J. Phelps, for the respondents.
   Bowen, J.

Heman Aldrich, the purchaser of part of the premises sold under the judgment in this action, refuses to complete his purchase on the ground that he will acquire no title. Every person who had any title to or interest in the premises was made a party to the action; and as the judgment ordered and directed the sale, the purchaser will acquire a perfect title, provided the court had jurisdiction to pronounce the judgment.

It is claimed by the counsel for the purchaser that under the will of Mrs. Williamson her executors took, by implication, the legal title to the premises during the lives of four of the annuitants named in the will, one of whom yet survives, the plaintiff, in common with several of the defendants, having only an estate in remainder after the death of such surviving annuitant; and as she had not the right of immediate possession, it is insisted that the court had no jurisdiction to award either a partition or a sale.

Upon the authority of Brewster v. Striker (2 Comst., 39), I think it must be held that the plaintiff had only an estate in remainder in the premises, but it by no means follows that the purchaser under the judgment will acquire no title Conceding that, by reason of the fact that the plaintiff was neither in possession nor entitled to the immediate possession of the premises, the Supreme Court erred in awarding a sale (concerning which I express no opinion), yet, the judgment is binding upon the parties if the court had jurisdiction of them and of the subject matter of the action.

That jurisdiction of the parties was acquired is not questioned. The sale was under a judgment in an action commenced and prosecuted in the usual manner, and, as before remarked, every one having any interest in the land was made a party. In Gallutian v. Cunningham (8 Cow., 361), the Court of Errors affirmed a decree of the chancellor, in effect setting aside or declaring void a sale of land under a judgment of the Supreme Court, in proceedings for partition. Two opinions only were given, one by Mr. Justice Woodworth, and the other by Senator Colder. Wood-worth, Justice, held the sale void on three grounds: First. That all the petitioners were infants; Second. That there was no evidence before the Supreme Court tending to show that the premises could not be partitioned ; the statute regarding proceedings for the partition in the Supreme Court by petition then in force requiring, in addition to the report of the commissioners to that effect, that it should appear by satisfactory proof to the court that partition could not be made, &c.; and Third. That the guardian ad litem of the infant owners was the purchaser. Colder, Senator, held the sale void, solely on the last ground. All the other members of the court concurred in affirming the decree, but declined specifying the grounds of their concurrence. It cannot be claimed that the above case is an authority for holding that the judgment in the case at bar is void, as, for aught that appears, a majority of the members of that court voted for an affirmance of the decree, on the ground that the guardian was the purchaser; thus leaving the judgment ordering the sale in full force, as, in such case, the sale was declared void on account of the incapacity of the purchaser. And again, the judgment was not in an action properly so called, but in proceedings commenced by petition, and conducted under and pursuant to a statute.

In Brownell v. Brownell (19 Wend., 397); Clapp v. Bromagham (9 Cow., 530); O’ Dougherty v. Aldrich (5 Denio, 385), Wood v. Clute (1 Sandf. Ch. R., 199); Postley v. Kain (4 id., 508) and Fleet v. Dorland (11 Howard’s P. R., 489), the questions arose and were decided during the pendency of che actions or proceedings, and consequently can have no application to the question of the binding force and effect of the judgment in this case.

The judgment in this action and the sale under it cannot injuriously affect any one but the parties, and they do not complain; on the contrary, they ask to have the sale perfected. No one except the parties has the right to complain; and the parties, by not interposing any objection, either by answer or by demurrer, have, in effect, consented that the court might entertain jurisdiction of the action, and so long as the judgment is unreversed, they are bound by it and by the proceedings under it.

■The Supreme Court is one of general jurisdiction in law and equity, and has jurisdiction of all actions for partition. When this case was presented, it was its province to decide whether it was a proper one in'which to award a partition or a sale,, and if its decision was erroneous, the remedy was by appeal.

As no one but the parties to the action can call in question the purchaser’s title, and as they are bound by the judgment, there is no reason why the sale should not be consummated.

The order appealed from should be affirmed.

Denio, C. J.

In the view I have taken of this case, it may be admitted that the executors of Maria H. Williamson took, under her will, an estate four autre vie, by implication, for the purpose of leasing the premises, to raise the annuities payable to Margaret Blakeley and others. Conceding this’ to be so, there is no doubt whatever but that William Calder and the fourteen other persons named in the eighth division of the will, became seized of vested remainders in fee, at the death of the testatrix. All these persons, so far as they have survived, and all others holding derivative titles under them, were made parties to the partition suit. The surviving executor and trustee, who was seized of the intervening freehold, if one ever existed in the executors, and the surviving cestui que trust of that estate, were also parties. The rights of all these parties were definitively adjudged by the decree in partition, unless that decree is impeachable for want of jurisdiction in the court that pronounced it; and this question of jurisdiction is the only one in the case. The first section of the title of the Revised Statutes. concerning the partition of lands, authorizes the proceeding therein provided, in the cases where several persons shall hold and be in the possession of any lands, Sec-as joint tenants or tenants in common; and it empowers one or mote of such persons, being of full age, to institute the proceeding by applying to the court on petition. (2 R. S., 317.) If this language is to be understood in its popular sense, the proceeding was unwarranted; but on the supposition that there was, when the partition suit was commenced, a precedent estate for life existing in the surviving executors, none of the devisees in remainder can be said to have been in possession. There is, however, a sense in which a party entitled to a vested remainder may be considered to be in possession of that estate. He may, with perfect legal propriety, be said to be seized in law of the estate; and the term seizin, by the common law, imports the having possession of an estate of inheritance in the lands or tenements. In Vanderheyden v. Crandall (2 Denio, 9), a construction was given to the provisions of the statute abolishing entails, which declared “ that in all cases where any person or persons now is or are, or (if a certain act had not been passed) .would now be seized in fee tail of any lands, &c., such person or persons shall be deemed to be seized of the same in fee simple.” A person under whom the parties claimed was entitled to a vested remainder in tail, expectant upon a life estate, at the time of the passage of the act, and the question was whether he could be said to be at that time seized of the lands in fee tail, his interest as regarded corpo real possession being wholly future and expectant; and it was held that he was so seized within the meaning of the statute I should not, however, be willing to act upon the interpre tation which I have thus suggested, if there was nothing ii the statute showing more conclusively that the legislature intended that future vested estates might be partitioned But upon looking through the act, it seems to me impossible to doubt that it did so intend. Section sixteen shows clearly that future estates, whether vested or contingent, may be taken into consideration, and the rights of persons entitled to such estates may be adjudged, but it cannot be certainly deduced from this that it could be done unless the present estate was held by joint tenants or tenants in common. But by section thirty it is provided that whenever the estate of any tenant in dower, or by the curtesy, or for life, in the whole or any part or share of the premises in question, has been admitted by the parties or ascertained by the court to be existing at the time of the order for sale in a case in partition, and the person entitled to such estate has been made a party to the proceedings, the court shall first proceed and determine, under all the circumstances of the case, whether such estate ought to be exempted from such sale or whether the same should be sold, and in making such determination they shall have regard to the interests of all the parties. From this it is clear that the existence of a life estate in the whole premises held in severalty is not an impediment to a sale of the premises for the purposes of a division among parties entitled, as tenants in common, to future estates in the same land. And by section sixty-six, the portion of the proceeds of the sale belonging to the tenants for life is to be invested for their benefit. The purpose of sections thirty-five and thirty-six is to state what parties are to be concluded by a judgment in partition and what parties are not to be affected by it; and, among others, the parties named in the proceedings “ as entitled to the reversion, remainder or inheritance of the premises after the termination of any particular estate therein,” are to be concluded (§ 35); but the judgment is to have no effect upon (among others) tenants for life of the whole premises. (§ 36.) These provisions contemplate the existence of cases where there is a tenancy-for life of the whole premises, with a remainder or reversion held in joint tenancy, or a tenancy in common. They contemplate that partition may be made, in such cases, to have full effect upon the owners in remainder and reversion, but no effect upon the estate in life. But it is impossible to suppose such a case unless it be admitted that a reversioner or remainderman may institute the proceedings. An amendment of the statute, passed in 1847, is equally explicit. The provision of section fifty, just cited, is limited to cases where there shall be a sale. But the case of actual partition, where there was an intervening tenancy for life, also held in shares, had been omitted, and was now to be provided for. It was accordingly enacted '5 that whenever the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties or ascertained by the court to be existing at the time that judgment shall be given that partition be made, and the person entitled to such estate has been made a party to the proceedings, it shall be lawful for the commissioners to allot to such tenant his share thereof without reference to the duration of such estate; and also to make partition of such share and allot the same to the parties respectively who shall be entitled to the remainder thereof according to their respective rights therein, whenever in the opinion of the commissioners it can be done without prejudice to the rights of the parties.” (Laws of 1847, ch. 430, § 5.) The effect of these provisions, taken together, is, that where there is a tenant for life of the entirety, and the remainder is held in tenancy in common by several, these tenants in common of the remainder, or any of them, may institute proceedings under this statute; if the estate for life continues till the judgment, partition is nevertheless to be made by leaving to the tenant for life his estate in the premises untouched, and dividing the land among those entitled in remainder. If the life estate is also owned by joint tenants or tenants in common, but in different' shares from those into which tho remainder is to be divided, then there is to be a double partition, first among the tenants for life and then among the owners of the remainder. But if the premises are so situated that they cannot be partitioned among the remaindermen, so that a sale must take place, the court, according to the provisions of section fifty, must consider and determine whether, under all the circumstances of the case, the life estate shall be excluded from the sale and the remainder alone ha sold, or whether the whole life estate and remainder shall be sold; and in determining this question the court is admonished to have regard to the interest of all the parties ; and it is moreover provided in effect that the estate for life is not to be interfered with unless the tenant or - tenants for life are made parties to the proceeding. This seems to me to be the plain meaning of the statute, and it follows that a tenant in common of a remainder may institute the proceeding ; for in case of a sole tenant for life of the entirety, he, having no co-tenants, could not bring a suit in partition. A tenant in common of the remainder may, as I have said, o it, and by making the tenant for life a party, the- life estate may be sold if the interests of the parties require it, or it may be excepted from the sale if that is thought most judicious. If this is not so I am unable to attach any useful meaning to the provisions which have been cited. It may be said that a tenant for life of the entirety, having no occasion for a partition himself, ought not to be compelled for any reason or under any circumstances to have his land turned into money for the convenience of others who own future estates in the same land. It is however an incident of the qualified nature of his ownership, and it is no more subversive of principle than the course, expressly authorized and universally acted upon, of compelling a sale of an undivided part of an estate when in the opinion of the court partition cannot be made without great prejudice to the owners. 37.) This does not require the consent of the owners, but only that they shall be parties to the proceeding and be allowed to litigate the question as to the practicability of partitioning the estate. This is a qualification of the ábsolutum et directum dominium, which the owners of allodial lands are said to have, which the law for purposes deemed wise has engrafted upon estates held jointly or in common. The same qualification may for similar reasons be attached to land owned by several persons, where the division of their interests relates to the period of enjoyment, as where several have successive estates in the same land. I see nothing therefore in the dispositions which the legislature has made, inconsistent with fundamental principles concerning the right of private property.

It was argued that the question under examination had been settled the other way by adjudged cases. Clapp v. Bromagham (9 Cow., 530) was decided under the former statute, which did not contain the particular provisions which I have cited from the present act. To the petition in partition, the defendant pleaded that he was sole seized of the premises, and it was held that the defendant .was entitled to prevail on account of an adverse possession of the entirety for twenty years. Brownell v. Brownell (19 Wend., 367) was decided in 1838, and of course before the amendment of 1847. On the trial of the issue of non tenent insimul, it appeared that the plaintiff was only seized, if seized at all, which was doubtful, in remainder, expectant upon the termination of a life estate. Sections thirty-five, thirty-six, fifty and sixty-six were overlooked or not mentioned in the opinion of the court, and it was held that the plaintiff could not prevail because she was not entitled to the immediate possession; the court relying upon the first section of the statute. The present question was not much considered, the principal point being, as the reporter expressly states, upon the construction of a will. The provision of 1847 not having then been enacted, the point was less clear than it now is; but as the then existing statute contained the other provisions I have considered so material, I cannot say that I think the case was correctly decided. Himnewell v. Taylor (6 Cush., 473) was a petition for partition under a Massachusetts statute, which declares expressly that such petition cannot be maintained by one who has only a remainder or reversion. In Brewster v. Striker (2 Comst., 19) the partition to which effect was refused was made in a proceeding to which the tenants of the estate for life were not parties; and, besides, it was under the former statute. In O' Dougherty v. Aldrich (5 Denio, 385) the plaintiff’s title, if any, arose only upon proof that the defendant had failed to perform a condition subsequent, and it was held that such a question could not be tried in an action for partition. Burhans v. Burhans (2 Barb. Ch. R., 398) was the case of an adverse possession on the part of the defendants. It will be thus seen that none of the cases relied on, except Brownell v. Brownell, refer to the present question, and I have mentioned the reasons which have convinced me that that adjudication should not be followed.

It is further objected that it does not appear to have been ascertained and adjudged that a, sale was necessary.

There being infant defendants, and those of full age having made default, there was a reference to Mr. Sackett as referee. His report is not among the printed papers, but was read on the argument by consent, and supplies the ' evidence supposed to be wanting. It is then adjudged that the premises should be sold. It sufficiently appears from this that the necessary proof was made. It is the more probable when we see that the share of some of the parties was so small as the one hundred and eighteenth part of the premises, and that the four lots which were partitioned contained only about one hundred feet in front, on the streets on which they were situated.

On the whole case I am of opinion that Mr. Aldrich, the purchaser, has no reason to complain of the title, and that he should be adjudged to complete his purchase.

The order appealed from should therefore be affirmed.

Comstock, Seldek and Paige, Js., concurred in the opinion of Demio, Ch. J., but a majority of the court not being prepared to adopt the same, the decision was put upon the ground stated by Bowek, J., in which all concurred.

Judgment affirmed.

[The residue of the cases decided in September term in the next volume.]  