In contemplation of a marriage about to be solemnized between the defendant, Timothy Clemmons, and Unity Gilbert, on the 8th day of January, 1831, the former entered into a contract in writing under seal, whereby, certain slaves therein mentioned, to wit: Liddy, Dora, Mall, Hardy and Jane, with the increase of the females, are secured to the said Unity, "during her natural life, and after her death, one-half (313) of the above described negroes, with their future issue and increase of the females, to be equally divided to the child of the said Timothy, if any by the said Unity, and if more than one child by the said Unity, then, and in that case, the whole of the said negro slaves, with their futures issue and increase, to be equally divided among the children that the said Timothy may have by the said Unity Gilbert; and in case the said Unity should have no child by the said Timothy, after her death, the above described negro slaves, with their future issue and increase, to revert to my other children, and their heirs and assigns."
Unity, who, immediately after the execution of the above instrument, became the wife of the said Timothy, died in the year 1852, without ever having had any child or children by the said Timothy; leaving the defendant, Timothy, surviving her.
The plaintiffs are the children of the defendant, Timothy, by a former marriage, and the personal representatives and descendants of such as are dead.
The bill prays for a partition of the slaves, and for an account of the hires since the death of Unity, alleging that the defendant has been, since that time, in possession of them, and has made large profits from them.
The answer, not being adverted to in the opinion of the Court, is not set out.
The cause was set down for hearing on the bill, answer and exhibits, and sent up by consent of parties. The bill is filed for the partition of certain slaves. It alleges that the plaintiffs are tenants in common of the slaves mentioned, by virtue of a marriage settlement made between the defendant, Timothy Clemmons, and one Unity Gilbert, whereby the slaves were conveyed to the said Unity during her life, and after her death, to the children of the said Timothy; that she is dead, and the (314) complainants are the children of the said Timothy and their *Page 261 descendants, and entitled, by the marriage settlement, to the slaves, as tenants in common. The bill then states that the defendant, Timothy Clemmons, the grantor in the deed, and the husband of the said Unity, and who has survived her, is in possession of the said slaves, and has been since the death of his said wife, hiring them out and making large profits, of which they claim their respective shares. It prays for an account of the hire of the slaves, and a sale of them for partition.
The bill cannot be sustained. It is multifarious, bringing before the Court distinct and independent causes of action, to wit: praying an account and relief against Timothy Clemmons, and a sale of the slaves for partition among the claimants. Adams' Eq. 568; 4 John Ch. Rep., 199.
2. The bill is demurrable, as it states that the defendant, Timothy Clemmons, is in the adverse possession of the slaves, using them as his own. The bill does not use the word adverse, but the statement shows such to be the character of the defendant's possession. The principle is too plain to need authority, that tenants in common cannot procure a partition or sale of property, while out of possession. They must obtain possession before they can sustain a bill for partition.
Per curiam.
Bill dismissed.