1

Although

vision for such trial in all partition actions. 1 the modern partition action is regarded as of an equitable nature, the verdict of a jury in such action is no longer one on a feigned issue and cannot be disregarded by the court, as if it were one in equity."

As the issues of fact in the reformed action of partition are very complex, oftentimes, under the new procedure, the court may order them stated for trial;3 or, in some cases, it would seem, may sever the action. If a complaint in partition, for instance, alleges the invalidity of a devise, and a defendant taking issue on this allegation sets up also an affirmative defense of title in himself by adverse possession, as he may now do, such a course would seem proper; for otherwise the trial of the case would be too complicated and its duration interminable. Trying so many issues of a grave nature in one action and at one time would also complicate, rather than simplify, procedure under the Code of Practice, as well as tend to unsettle titles to estates in lands.

6

It was some time since well understood, that in at least one case-that of an heir at law-a disseisee, or person out of possession, may bring partition under the Code of Civil Procedure. It is now, contrary to what was generally believed by the profession, also held that disseisors in possession may be made defendants in all cases where a partition is sought by a person claiming the right as a tenant in common or a joint tenant. Thus the allegation of seisin in plaintiff, so long held to be essential to a complaint in partition, is no longer necessary. 10 A parti

1 Sec. 1544, Code Civ. Pro.

2 Jones v. Jones (1890) 120 N. Y. 589; Bowen v. Sweeney (1894) 143 N. Y. 349. Sec. 970 Code Civ. Pro.

3

4 Cassidy v. Wallace (1881) 61 How. Pr. 240.

5 Satterlee v. Kobbe, (1903) 173 N. Y. 91.

6 Sec. 1537, Code of Civil Procedure; Weston v. Stoddard (1893) 137

N. Y. 119.

7 Kurtz v. Wiechman (1902) 75 App. Div. 26; Damron v. Campion (1898) 24 Misc. 234. Satterlee v. Kobbe (1903) 173 N. Y. 91.

8

9 Van Schuyver v. Mulford (1875) 59 N. Y. 426.

19 Drake v. Drake (1901) 61 App. Div. 1. Wainman v. Hampton (1888) 110 N. Y. 429, 433; Weston v. Stoddard (1893) 137 N. Y. 119; Satterlee v. Kobbe (1903) 173 N. Y. 91.

tion may now involve issues once tryable in ejectment only.

Not only may a disseisee now bring partition and test the defense of a title by adverse possession in such an action, but reversioners and remaindermen out of possession may bring partition against a life tenant, and with the latter's consent the lands may be sold at judicial sale.1 In like manner tenant for life, or years even, may bring partition against his co tenants and join remaindermen and reversioners and without their consent have the fee sold at judicial sale, free of all contingent remainders and interests. Thus successive estates, and not estates held "simul" or together, by the same tenancy, have now become the subject of compulsory partition proceedings. This is a great innovation upon all old conceptions of the proper scope of compulsory partition proceedings. Under the ancient statute (31 Hen. VIII.), the original of all compulsory partition acts, only those seised of estates of inheritance could have partition inter se. But, in the following year, the right was extended to those seised of estates for life, or possessed of estates for years. There the legislation stopped for centuries. Remaindermen or reversioners, or those disseised, then never dreamed of a proceeding in partition, while tenants for life never conceived of a partition in which a forced judicial sale might be had, cutting off the enjoyment of successive estates in remainder or reversion, contrary to all settlements, and substituting therefor in præsenti a share of a fund in court.

This brings us to the consideration of that novel and extraordinary judicial remedy, a judicial sale which is not an execution, but an expedient to resettle estates in land. In the minds of older generations of statesmen and lawyers land was only to a limited extent "property." It was primarily, regarded as the seat and the source of family life, the perpetuation, well-being and permanence of which were essential to a justly ordered and conservative State. Forced judicial sales of land were then regarded with horror. To 1 Sec. 1533 Code Civ. Pro.

355.

2 Secs. 1532, 1538 Code Civ. Pro. Jenkins v. Fahey (1878) 73 N. Y.

some extent this sentiment survives in those States where "Homesteads" are exempt from execution. In at least one State this exemption was extended to places of business, and even this extraordinary exemption has not injured the temporal prosperity of the State in question. To those who regard the permanence and the security of the families of a State as paramount to mere mercantile considerations, forced judicial sales of the home remain abhorrent. This subject in all its aspects certainly receives too little consideration at the present time. Forced judicial sales in so-called partition proceedings are inconsistent with the sentiment denoted, even if they are not inconsistent with vested rights of property.

A judicial power to order lands sold without the consent of those solvent owners having estates in possession or remainder is a tremendous power, and certainly should be circumscribed by every safeguard known to constitutional experience. The original partition acts never contemplated a sale in any partition proceeding. In England the partition statute still only provides for a forced sale of part of the lands to defray costs; and an actual partition of the remainder is always contemplated in that case.

In America, on the other hand, a forced sale of land is treated as an ordinary, not an extraordinary, proceeding in partition actions. Yet a court has no inherent power to decree a sale of land. It is a power conferred by statute only, and, like all statutory powers, should be most strictly construed. If the parties to a partition action conspire to effect a sale, the court, at least, should have its eyes open, even if all the parties consent.

In the Province of New York an act of the Assembly passed in 1762 provided for a sale of a small part of the lands, sought to be partitioned, to defray the expense of actually partitioning the residue of the lands. After the establishment of the State government the legislature reenacted a like provision, and then first provided that, in case an actual partition of houses and lots could not be made "without great prejudice," the court might order a sale.3

This was the entering wedge in the modern practice of

1 31 & 32 Vict. c. 40. 2 Chap. 1171 Van Schaack's N. Y. Laws.

judicial sales in partition actions. Yet, as the act of Henry VIII was at the same time re-enacted,1 it is highly probable that no forced sale of agricultural or unimproved lands in partition proceedings was then ever contemplated, except of that small part necessary to defray the costs of partitioning the residue. When the property was urban or improved property, a sale was intended to take place only in the event that a partition could not be made without great prejudice.'s These acts have been from time to time reenacted, but always with the same reservation-that no sale should be made unless actual partition would occasion great prejudice to the owners. 4

Notwithstanding this fundamental limitation upon the judicial power to decree a compulsory sale in partition actions, an examination of the records in partition cases will often disclose a careless or a perfunctory investigation of the jurisdictional question. In several cases examined the finding was wholly unsupported by proper evidence; yet a decree of sale had passed, and the parties to the action were undoubtedly bound. So frequent have sales in partition actions become that it has even been said by the highest authority that the power to decree a sale or an actual partition is discretionary. But as such a decree is open to examination on appeal for error in decreeing a sale instead of a partition, it is difficult to comprehend how it can be held discretionary, as the power to order a sale is wholly dependent upon proof that great prejudice to owners will be incurred by an actual partition.

It has also become the practice, that evidence of the values of the whole tract and of the aggregate of the subdivided parts is taken as sufficient proof of that great prejudice to owners within the statute, whenever a probable sale of the parts is shown as likely to be less productive than a probable sale of the whole, or when the value of the whole is shown to be more than the value of the 12 J. & V. 185. 2 Clason v. Clason (1837) 6 Paige 546. 3 1 J. & V. 201, 207.

1 K. & R. 542, 544; 1 R. L. 507, 510; 2 R. S. 317; Sec. 1532 Code Civ. Pro.

5 Scott v. Guernsey (1871) 48 N. Y. 106; Brooks v. Davy (1888) 109 N. Y. 495.

6 Blakeley v. Calder (1857) 15 N. Y. 617, 622; Howell v. Mills (1874) 56 N. Y. 226; Jordan v. Van Epps (1881) 85 N. Y. 427, 436.

aggregated and proposed subdivisions. Yet it is doubtful whether such speculative evidence was in the mind of the framers of the partition acts when they provided that a sale should be had in partition cases only in the event that actual partition would occasion great prejudice to owners. The draughtsmen probably had in mind some physical defects in the lands which would prevent a fair division, or that the tolls of a particular mill could not be alternately allotted, or that the chambers of a particular house were insufficient for all the tenants in common. Such were the factors, then, of difficulty and prejudice in partition proceedings, and to them the acts referred and not to mere comparative values in case of a sale or a partition.

That an unnecessary judicial sale in a partition action may be a means of working an injury to co-owners, may be perceived from an illustration. A farmer seised of a homestead farm and little else dies intestate, leaving a widow and children surviving, some of whom are minors. The farm has furnished for generations an adequate maintenance for successive families. Formerly the wife's dower would have been set-off, and the estate and family kept together, and the latter educated and maintained from the farm, until the dower estate terminated, or tenants in common were of an age to convey their interests by ordinary deed of conveyance. Now that the widow has become by statute, not only a proper, but a necessary, party to a partition, and provision is made for a sale of her title of dower in the partition action, a sale has become a matter of course. In fact, all things now point to a sale in a partition action, and even infant tenants in common may again bring partition, contrary to the former practice. What is the result of the practice of selling farms on the case in point? The farm is either sacrificed at the judicial sale or the proceeds are most likely lost or wasted by those uninitiated in the secrets of a wise investment of money. The adult children take their several shares and drift away. The

1 Clason v. Clason (1837) 6 Paige 541; aff'd 18 Wend. 369.

2 She was not a proper party to a partition proceeding. Bradshaw v. Callaghan (1809) 5 Johns. 80; Rosekrans v. Rosekrans (1873) 7 Lans. 486. 2 R. S. 318 sec. 6; Secs. 1538, 1570 Code Civ. Pro. Letson v. Evans (1900) 33 Misc. 437.

Secs. 1567, 1568, Code Civ. Pro.

Secs. 1534-6, Code Civ. Pro., founded on Chap. 277, Laws of 1852. 6 Postley v. Kain (1847) 4 Sandf. Ch. 508.