■ I am not prepared to say, that in the case of a voluntary partition, between tenants in common of lands, which has been consummated by conveyances to each of his share in severalty, where no question is raised in regard to the fairness and equity of the partition, a court of equity has not power ...to compel a creditor having a lien on an undivided interest 'by judgment or mortgage before such partition, to resort to the .share so partitioned to his creditor, for the satisfaction of his lien, and restrain him from enforcing such lien against the shares so partitioned and conveyed to the other tenants. I am not aware that such a question has ever arisen in our courts,, for adjudication. JSTor does it arise here. The appellants’ counsel contends that the several agreements and conveyances between the heirs of Frederick S. Martin were tantamount to a voluntary partition of the estate between them. ' But it will be seen by an examination of the several contracts and. conveyances, that they were in no respect in the nature of a partition, and were not intended to be a partition. They were mere contracts of bargain and sale, and conveyances thereon ; the same, precisely, as such transactions are begun and carried out' between separate owners of lands. It was the misfortune of - the plaintiffs that they conveyed their interest in the common" lands to Russell Martin, and thus subjected it to *453the lien of the judgments against him, and took from him an interest already incumbered. But they did it voluntarily, with their eyes open, and must, for aught I can see, abide by the consequences. There is no pretense that they acted under any mistake, or ignorance as to facts. The judgments against Bussell Martin were all matters of record, and must, or should, have been known to the plaintiffs, at the time. What is here asked of the court, is, in effect, to relieve the plaintiffs from the consequences of their own voluntary and imprudent conduct. This is not the province of a court of equity.
The other judgments having been enforced, and the title of Bussell Martin to the lands conveyed to him by the plaintiffs, and all the other lands held by him in severalty, having been alienated in executing the judgments, and the title vested in the hands of different purchasers, it becomes, as the referee held, a mere question as to the order in which the lands subject to the lien of the judgment in question should be sold, or made liable to contribution to the judgment in question. This is regulated by statute. (2 R. 375, §§ 70, 71.)
All the lands of Bussell Martin, the judgment debtor, upon which the judgment in question ever attached as a lien, are now in other and several hands. There is no complaint, or pretense, that the defendant is attempting to violate the rule prescribed by statute for contribution by lands alienated, or to prevent its operation. On the contrary, the complaint is, that the defendant has levied upon and advertised for sale those lands, only, which the statute makes liable to contribute in the first, second and third order. It is of no consequence whatever that the defendant, when she took her assignment of the judgment in question, agreed not to enforce it against the lands held by her assignor under the sale by the Chautauqua County Bank, on its judgment. The plaintiffs have no interest in that question. Those lands stand fourth in the statu*454tory order of contribution, and it is of no Consequence to the plaintiffs, whether the defendant will be able to satisfy, her judgment, or not, after their lands shall be sold.
[Fourth Department, General Term, at Rochester, September 4, 1871.The plaintiffs clearly had no cause of action by reason of anything alleged in their complaint, or proved upon the trial, and their complaint was properly dismissed.
Judgment affirmed, with costs.
Mullin, P. J., and Johnson and Talcott, Justices.]