
    Henry C. Harding, Appellant, v. Josephine Craft, Individually and as Executrix, etc., of Samuel Craft, Deceased, and Others, Respondents.
    
      When a, remainderman camnot maintain an action of partition.
    
    Under the provisions relative to the partition of real property, contained in sections 1532, 1533 and 1538 of the Code' of Civil Procedure, a remainderman cannot maintain such an action in a case where the nature of the property is such that an actual partition may not he had without great prejudice to the rights of the owners, and the life tenant does not consent to a sale.
    Appeal by the plaintiff, Henry 0. Harding, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 22d day of January, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Moses Weinman, for the appellant.
    
      John Andrew Beck [E. T. Payne and Oscar Frisbie with him on the brief], for the respondents.
   Hatch, J.:

This is an action brought by the plaintiff, who is the owner of a vested remainder in certain lands, situate in the counties' of Kings and Queens, fór a partition of "the same. The defendant Matilda H. Craft is the. owner in fee of an undivided interest in the property, and is also the owner of a life estate' in an undivided eleven hundred and thirty-three three-thousandths interest in the Kings county property, and of an undivided one-third in the Queens county property. The property in Kings- county ■consists of a lot twenty by ninety, with a brick dwelling house thereon, somewhat fallen into decay, and worth about $3,000. The property in Queens county consists of about 100 acres of farm land, with old buildings thereon, the substantial value being in the land. It has a woodland frontage upon the highway of about 300 féet, running back therefrom about 1,500 feet, is nearly square in form, the bulk of it being cut off from any highway by intervening owners. Matilda H. Craft, the life tenant, refuses to consent to a sale of the property which is the subject of the action. Prior to the adoption, of the Code of Civil.Procedure a remainderman could not maintain an action of partition against a person who held a life estate in the premises sought to be partitioned, and. it was doubted if he could compel partition between himself and persons seized of a life estate, subject to the interest of the life tenants. (Sullivan v. Sullivan, 66 N. Y. 37.)

By section 1533 of tne Code, authority was conferred to-maintain partition in a case where two or more- persons held as joint tenants, or as tenants in common, an estate in remainder, according to their respective shares therein, subject to the interest of the person holding the particular estate. But no sale of the premises could be" had except with the consent of the person holding the particular estate. The language of this section seems- "to limit the right of remaindermen to partition among themselves, where they appear as owners of the property, subject to the life estate. This construction is borne out by the provisions of section 1532, where partition is authorized between persons holding and in possession of real property as-joint tenants or as tenants in common, in which either of them has an estate, etc., according to the respective rights of the persons interested therein." This is the general power conferred to partition, and extends the authority to the persons named according to their rights and interests. The authority conferred upon the remaindermen by the next section is limited and relates to their respective shares therein. There is a distinct limitation in this language, for if it was-intended that remaindermen could institute an action of partition among themselves and against tenants in possession, then there would have existed no reason for a change in phraseology, or, for that matter, for conferring iipon them separate authority, as they could have been embraced in the first section as easily as to point out their particular right in a second. And this is further made clear by section 1533, read in connection with section 1538. By the former the remainderman is limited in his right to maintain partition,, unless he or his co-owners own the whole property subject to the-life estate. The express provision of the latter section is: “No-person other than a joint tenant, or a tenant in common of the property, shall be a plain tiff in the action.” In the present case the-plaintiff does not answer this requirement, as he is neither a joint, tenant nor a tenant in common, and is not in possession either actual or constructive. (Sullivan v. Sullivan, supra.)

It is quite clear that, by the adoption of these sections of the-Code, it was not thereby intended to change the rule relating to the rights of remaindermen to maintain partition beyond the express-authority conferred. In the main, the object was to allow partition in a case where the holder, of" the life estate or other tenancy consented to a sale of the. premises; and while the rule is extended somewhat beyond, this, it is clear that it should be held within the prescribed limits. It is' as evident now as before the Code that any actual partition of the interests in remaindér, even though equal when the partition was made, may become greatly unequal at the time of the devolution of the estate, in consequence of which partitión should not he allowed, except in a case coming fairly within the terms of the Code. Su'ch is not the present case. If, however, the action could be maintained, we are of opinion that actual partition of the property could not be made without prejudice to the rights of the respective owners, and as the life tenant does not consent to a sale there can be no partition.

The judgment dismissing the complaint was right and should be affirmed,, with costs-.

All concurred.

Judgment affirmed, with costs.  