
    CASE 30 — PETITION EQUITY
    Oct. 13.
    Prather v. Davis.
    APPEAL EROM LOUISVILLE CHANCERY COURT.
    1. A lease eor years is not real but personal estate. (Sec. 13, ch. 21, General Statutes.)
    2. There is no statute authorizing the-courts to sell chattels, because they are indivisible between the owners, but in courts of equity such power is inherent and independent of statute.
    3. When the chancellor undertakes to supply a remedy, because the law has given none, he should give one commensurate with the exigencies of the case.
    4. When the chancellor finds a party with a legal right, hut without a remedy to enforce it, he should furnish an adequate remedy.
    5. Indivisible chattels, real or personal, may be sold and the proceeds divided among those entitled.
    When a chattel, whether real or personal, is owned by tenants in common, and is indivisible in kind, the chancellor may, on the petition of a part of the owners against the others, decree a sale and division of the proceeds.
    The sale of a chattel, real, because indivisible is affirmed in this case.
    HAMILTON POPE eor appellant.
    The chancellor has no jurisdiction to order the sale of a leasehold estate, or any chattel, real or personal, on the petition of the owner of an 'undivided half thereof against the owner of the other half, and divide the proceeds, on the ground alone that the property is not susceptible of division.
    By purchasing each one half o>f the leasehold, the appellant and appellee became part owners, but not partners.
    If the leasehold were land, and not susceptible of division, it might be sold under sec. 6, art. 5, ch. 63, General Statutes. But a leasehold is declared to be “personal estate” by sec. 13, ch. 21, Gen. Stat.
    The legislature having conferred power upon the courts to sell real estate only because indivisible, no power can be inferred to sell personal estate because indivisible. The maxim expressio unius est exelusio alterius applies. When a statute confers jurisdiction to sell real estate only, it can not be said that it also confers jurisdiction to sell personal estate under the same circumstances. Such power is not only not conferred, but is denied.
    
      The jurisdiction of the Louisville Chancery Court has not, under sec. 40, art. 4, of the constitution, through enlargement by the legislature, been extended to the sale of personal estate because indivisible. It has jurisdiction, conferred by statute, to sell real estate because indivisible, but no power has been conferred upon it to. sell personal estate because indivisible.
    The question is, Can one man, on his own motion, compel the sale of another man’s personal property because it can not be divided between them?
    “Each has an equal right to the use and possession thereof, and each can sell only his undivided share thereof.” (Story on Partnership, section 414.)
    “ A steamboat, being personal property, unless held in partnership, can not be sold at the instance of one part-owner. (Hewitt v. Sturdevant, 4 B. Mon. 462; Patterson v. Chalmers, 7 B. Mon. 599.)
    
      No precedent can be found in this state authorizing such a sale of personal estate.
    The contrary doctrine is clearly announced and established by Coleman v. Hutchenson (3 Bibb, 213). The courts of this state have never had jurisdiction to sell real or personal estate for partition, except as' such jurisdiction was expressly conferred by statute. (Coleman v. Hutchenson, 3 Bibb, 213; Statute of 31 Henry VIII; Act of 1798, 2 M. & B. 1439; art. 1, ch. 93, and ch. 86, Rev. Stat.)
    As to slaves, the power to sell, when indivisible, was not carried into the General Statutes.
    Courts of chancery possess no inherent jurisdiction to sell real or personal estate, because indivisible, for partition. If so, why were the statutes passed, authorizing the courts to sell real estate and slaves for partition, because indivisible?
    A sale may injure appellant more than it benefits appellee; therefore, if he can be compelled to sell, must it not be on some equitable ground that would give the court jurisdiction ? This has been the law for sixty-four years, since the decision of this court in Coleman v. Hutchenson (3 Bibb, 213).
    HAMILTON POPE filed petition for rehearing, which was overruled.
    MOSS & RODMAN, on same side, in petition for rehearing.
    ' The -leasehold estate adjudged to be sold is not sufficiently described in the judgment. How long the lease is to run, or when the term expires is not set forth in the judgment.
    A leasehold is a right to an estate held by lease.
    A lease is a contract for the possession and profits of lands and tenements on one side and a recompense or rent or other income on the other. (Bacon’s Abr., “ Lease.”)
    
      A judgment should he certain and specific in its directions to the commissioner, in the description of the property to he sold, etc. (Lawless v. Barger, 9 Bush, 668; Noland v. Noland, 12 Bush, 426.)
    LANE & HARRISON por appellee.
    Lands owned by joint tenants, tenants in common, or coparceners, not susceptible of division, may, upon the petition of any one interested, <e adjudged to be sold (art. 5, eh. 63, Gen. Statutes), and, by analogy, a court of equity has the right to adjudge a sale of any interest in lands when indivisible.
    “ Tenants in common of personal property can not have partition in law; equity therefore has jurisdiction for that purpose.” (Smith v. Smith, 4 Rand. 95.)
    “ Only a court of chancery can make a partition of personal property; and such court may order the property to be sold, where partition can not be made, and divide the proceeds.” (Cropster v. Griffith, 2 Bland, 5. See also, to same effect, Hewett’s case, 3 Bland, 184; Wisely v. Findlay, 3 Rand. 361; Marshall v. Crow, 29 Ala. 278; Tiney v. Stebbins, 28 Barb. (N. Y.) 290; Barring v. Nash, 1Y. & B. 554; Parker v. Garrard, Amb. 236; Smith v. Smith, 4 Rand. 95; Kerley v. Olay, 4 Bibb, 241; 15 Barb. 336.)
    “ Bill in equity lies for partition of slaves in which complainant has a distributive share.” (Henning v. Conner, 2 Bibb, 188; Tanner v. Davidson, 3 Bibb, 456. See also Prescott v. Prescott’s heirs, 10 B. Mon. 61.)
    “The words 'personal property’ include slaves, money, goods, chattels, things in action, and evidences of debt.” (Civil Code, sec. 859.)
    If a chancellor in this state had jurisdiction to render a decree for a ^division of slaves and a sale thereof, if it could not be made in kind, and “ slaves were personalty,” then the same principles of equity would certainly extend to any other species of personalty.
    
    
      It is conceded by appellant’s counsel that a bill for partition of personalty would lie in this state in cases of partnerships and among distributees. It is not perceived why these two classes should be more favored in equity than other joint owners of personalty.
    “ Partners are joint tenants in the stock and all effects,” etc. (1 Mad-dock’s Chancery, p. 93.)
    “A bill for partition maybe sustained on behalf of a joint tenant of a lease for years, nor in such a case is the reversioner a necessary party.” (1 Maddock’s Oh. p. 248. See also Baring v. Nash, 1 Yes. & Bea. 551; Wotten v. Copeland, 7 Johns. Ch. Rep. 140; Story’s Equity, sec. 656.) ,
    The General Statutes (sec. 13, art. 1, ch. 63) provide as follows: “Joint tenants may be compelled to make partition, and when a joint tenant dies, his part of the joint estate, real or personal, shall descend to his heirs, or pass by devise, or go to his personal representative, subject to debts, curtesy, dower, or distribution.” Here, it is contended,' is statutory authority authorizing the partition of personal property.
   JUDGE COFER

delivered the orinion oe the court.

The sole question for decision in this case is, whether the chancellor has power to decree the sale of a lease for years held by tenants in common, and which is not susceptible of division.

The statute authorizes real estate held by tenants in common to be partitioned, and if it be not divisible without materially depreciating its value, it may be sold by judgment of the court and the proceeds divided.

But a lease for years is not real, but personal estate. (Sec. 13, chap. 21, General Statutes.)

There is therefore no statutory power to sell a lease for years, and if the court possesses such power it is inherent and independent of statute.

Mr. Story says if one tenant in common takes exclusive possession of a personal chattel, refusing to the other any possession or use thereof, the latter has no remedy whatever by action ,• but he may take the chattel, if he can find it, from him who has done the wrong. (Sec. 414, Story on Partnership.)

Coleman v. Hutchenson (3 Bibb, 209) was a suit in equity by Hutchenson to recover certain slaves. He was adjudged to be the owner of an undivided interest of two thirds in two slaves, the other one third being owned by Coleman.' As the court had possession of the case for the purpose of determining the rights of the parties to an interest in the slaves, and as the slaves ivere indivisible according to the rights of the owners, the circuit court decreed that they be sold and the proceeds divided.

But this court reversed the judgment, holding that it Avas only by statute that the right of partition existed. That the power of the court to decree a sale, when a division could not be made, was not incident to the power to make partition. The court said, "By the statute 31 Henry VIII joint tenants and tenants in common might be compelled to make partition of lands, etc., by writ de partitione faeienda, in like manner and form as coparceners by the common law were.”

"By the common law parceners might be compelled to make partition by the writ de partitione faeienda. And with regard to the manner of making partition, it is laid down that, if the thing be indivisible, one 'may have it for a day, a week, etc., and the other another day, or week, etc. (See Co. Litt., 164 — 5; Bac. Abridgm.) In those authorities it is said, that "if a villein descend to two or more coparceners, this is an- entire inheritance, albeit the villein himself can not be divided, yet the profit of him may be divided; one coparcener may have the service one day, one week, etc., and the other another day or week, etc. And for the same reason a woman shall be endowed of a villein.”

That decision (3 Bibb, 209) was made in 1813, and in 1833 the legislature passed an act empowering the chancery courts to decree the sale of slaves, held by joint tenants or tenants in common when division in kind could not be made (M. & B. 307), and a similar statute continued in force until slavery was abolished. But there never has been any statute of which we have any knowledge, authorizing the sale of any other description of chattel, because it was indivisible between the owners, nor any decision that the chancellor may decree such a sale without statutory authority. It is believed, however, that the power to decree sales under such circumstances has been very often exercised by the courts of this state Avithout their authority to do so being questioned by any one.

The existence of such a poAver must be conceded to be necessary, to prevent injustice and wrong.

In Coleman v. Hutchenson, supra, the court, although it reversed the decree for a sale of the slaves, went on to decide that the circuit court should “have decreed to each party the possession of the slaves, from time to time, according to their resjiective proportions.”

There was no statute authorizing any such decree, and if there was any power to make it, it was a power inherent in the court. Such a decree was no doubt directed on the ground that there was a right in the parties to the enjoyment of the joint property according to their respective interests; and as the law gave the right, but had provided no remedy, it was the duty of the chancellor to supply that defect in' the law by affording a remedy.

But the remedy afforded was inadequate. The chancellor having undertaken to supply a remedy because the law had given none, should have given one commensurate with the exigencies of the case.

In many, if not in a majority of cases in which a necessity for the remedy afforded in that case would arise, it would be little better than no remedy at all.

It seems to us, therefore, that when the chancellor finds a party with a legal right, but without a remedy to enforce it, he should furnish an adequate remedy.

It was for that purpose that courts of equity were instituted. If the chancellor may take charge of a chattel owned by tenants in common, and allow each to enjoy its use according to his interest in it, because there is no other remedy, we are unable to perceive any solid or satisfactory reason why he may not go a step further and do complete justice by selling the chattel and dividing the proceeds.

The argument against his doing so is, that he would thereby deprive some of the co-tenants of their title to the property without their consent. That is true. But in assuming to control the possession and use of the property he deprives those not consenting of dominion over it against their will; and there is at last no difference in principle, but only in degree, between taking control of the property and regulating its use, and ordering its sale and a division of the proceeds.

"We are therefore of the opinion that when a chattel, whether real or personal, is owned by tenants in common and is indivisible in kind, the chancellor may, on the petition of a part of the owners against the others, decree a sale and a division of the proceeds. (Cropster v. Griffith, 2 Bland, 5.)

The judgment of the vice-chancellor conforms to these views, and is affirmed.  