Black v. Washington
Black v. Washington
Opinion of the Court
delivered the opinion of the Court:
We are not willing to disturb the finding of the chancellor •on the facts as to the dispute about adverse possession by Davis.
The objection not taken in the lower court, but made for •the first time here, that this bill is iii effect an action of ejectment (inasmuch as the complainants had neither actual or constructive possession of the land, all of which was held adversely •to them by the appellant), however effective it might have been if made in a proper manner in the chancery court, is not available here. It was waived by the silence of appellant when he might have made it.
The proposition that the land was not partible because as to u, one-fourth interest in it the appellant has onty a life estate is not maintainable. It is not essential to the right to partition that the cotenants shall have estates that are equal. One may have a term, another an estate for life, and another an estate in fee. All that is necessary is that they shall be cotenants of what is proposed to be partitioned. A remainder or reversion will not be partitioned ; but that does not hinder an estate in pos■session from being partitioned among the cotenants, and the .fact that there is a remainder or reversion is not a bar to partition among those having an interest in possession. Freeman on Cotenancy and Partition, §§ 439, 440, 455 ; 1 Story’s Eq. Jur. § 656 ; 3 Pomeroy’s Eq. Jur. §§ 1386, 1387 ; Baring v. Nash, 1 Vesey & Beame’s Rep. 550; Nichols v. Nichols, 28 Vermont Rep. 228.
Affirmed.
Reference
- Full Case Name
- Charles E. Black v. W. P. Washington
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- 1. Supreme Court Practice. Bill in Chancery. Objection thereto not taken in court below. Case in judgment. The objection that a bill for partition is in effect an action of ejectment, inasmuch as the complainants had neither actual nor constructive possession of the land, which was held adversely by the defendant, must have been made in the lower court to be availed of here. 2. Partition. Of estates for life and in fee. Case in judgment. See. 2553 applied. W. and others held a one-half interest in fee simple in a certain tract of land. B. held a one-fourth interest in fee therein, and an estate for the life of another in the remaining fourth. Held, that the land was subject to partition under Sec. 2553, Code of 1880, which provides that “partition of land held by joint tenants, tenants in common and co-parceners, having an estate in possession, and not in reversion or remainder, whether the joint interest be in the freehold, or in any term of years not less than five, may be made by decree of the Chancery court.”