In 1855, John Fairly, being the owner of a large (197) estate in lands and personal property, executed a deed of gift of lands and negroes to each one of his four children. Among them he made a deed of gift of the three tracts of land, the partition of which is sought in this action, to his two daughters, Margaret and Effey, for life, to hold as tenants in common, and at their death to such children as they might have living at their death, in fee; subject, however, to two encumbrances. He first reserves a life estate to himself in the lands conveyed; and the second encumbrance is in the following words: "And if there shall be any indebtedness existing against the estate of the said John Fairly, at the time of his death, which the property belonging to his estate and not disposed of by him in his lifetime shall not be sufficient to pay off and satisfy, he directs that the same shall be paid in equal parts by his four children, Robert, Effey, Margaret and Henry; and the property, both real and personal, hereby given, etc., to them and each of them or for their benefit, severally, is hereby charged and encumbered with one-fourth part of said indebtedness; which is to be paid off and satisfied before said children or any of them is to take benefit from this indenture." *Page 153
Long subsequent to this deed of gift, to wit, in 1868, John Fairly, being indebted in the sum of $6,300 to Angus, William and Sally Gilchrist, children of his daughter Effey, and the remaindermen in said deed of gift, conveyed to them in mortgage to secure the payment of said debt a large amount of other property, not before disposed of, and also his own life estate in the lands and slaves conveyed to the plaintiff and the defendants by the deed of 1855.
Effey Gilchrist is dead, and the defendants, Angus, William and Sally, are her children, remaindermen in the deed of gift and tenants in common with the plaintiff Margaret.
John Fairly died in 1872, leaving the mortgage debt outstanding, and a charge upon the estates conveyed to (198) his four children in the deed of gift.
It is admitted that the property which was undisposed of by John Fairly, at his death, and that named in the mortgage, is insufficient to discharge the whole of the mortgage debt. After the application of this property to the debt, what amount of it will remain unpaid is not known and is a matter of conjecture only.
The prayer of the complaint is for a partition of the three tracts of land between the plaintiff and the defendants, the remaindermen, and also for an account by them of the rents and profits from the time they took exclusive possession.
The defendants deny the plaintiff's right to partition upon two grounds: First, because by the terms of the deed of gift no estate vests in the plaintiff until a performance by her of the conditions of the deed, to wit, until she pays off and discharges one-fourth of the debt of $6,300, which John Fairly owed at his death, and which is made a charge upon this land.
We do not think that this is the proper construction of the deed. The terms of the deed do not constitute a condition precedent, but a charge and encumbrance upon the land, saddled upon it, in whosoever's hands it may come. The language of the deed admits of no other construction; the land "is hereby charged and encumbered with one-fourth part of said indebtedness." No advantage to the creditor or to the remaindermen can result from an opposite construction. If no estate has vested in the plaintiff, none has in the defendants, and in any view the debt is a charge upon the lands.
The second ground of defense is that in law no partition lies between a tenant for life and tenants in fee.
Originally partition could be made only between parceners, but afterwards, by statute (31 Henry VIII), the writ was extended to joint tenants and tenants in common. Litt., sec. 241-3; I Inst., 164. As partition at first only lay between parceners, who were seized of *Page 154 (199) of an estate of inheritance, it was afterwards contended that under the stat. 31 Henry VIII, partition could be had only between tenants in fee or in tail. But it was held at a very early day that partition may be brought by a tenant in fee of one moiety against tenant for life of the other moiety, under the statute of Henry VIII, 2 Lester, 1015. And such is the received doctrine at this day. Hobson v. Sherwood, 4 Bear, 184, was where the plaintiff was tenant for life and the four defendants were each entitled to one-fifth of the estate as common in tail, and were together entitled to the remaining one-fifth, subject to the plaintiff's interest therein. The Master of the Rolls, Lord Langdale, said: "The plaintiff alone, who is tenant for life, determinable on his second marriage, desires a partition; all the other parties desire to keep the estate together. If, however, the plaintiff is entitled to the relief he asks, he must have it, however inconvenient it may be to the other owners." No question was made but that the plaintiff was entitled to partition, but the doubt was whether all the shares were to be divided, when all the defendants desired their shares to be kept together. It was finally determined that one-fifth alone should be partitioned off.
In this country parties having limited interests, as for example, tenants for life or years, may have a partition in equity, as well as at law, in respect of their own interests only. But if a complete partition be desired all parties interested may be brought before the court, and all estates, whether in possession or expectancy, including those of infants and of persons not in esse, may be bound by the decree, Adams' Eq., 230-2; Jacksonv. Edwards, 7 Paige, 386, 405; Horne v. Falloner, 4 Dessau, 86.
The action for the foreclosure of the mortgage, now pending in the court below, is no defense against this suit for actual partition of the lands between the tenants in common. The encumbrance will (200) remain upon the parts in severalty as it was before division, and the remedy for the nonpayment of the debt will be the same to the defendants.
The plaintiff is entitled to have her life estate allotted in severalty; and as the defendants do not deny in their answer that they are in the exclusive possession of the land, they are liable for occupation rent. The plaintiff is, therefore, entitled to an account of rents and profits.
PER CURIAM. Affirmed. *Page 155