It is very evident from the state of the pleadings, and the facts as they appear in evidence, that no decree for a partition can be made in this cause, even if the complainants should succeed in recovering the possession of an undivided portion of the premises in an ejectment suit. If the deed of 1817 was valid, John C. Burhans was entitled to one undivided eleventh part of the premises in question, under that deed, and to one undivided eleventh of another eleventh, as one of the heirs at law of his half-brother William. No partition, therefore, could be made in a suit to which he was not a party. And the complainants having voluntarily dismissed their bill as to him,'cannot obtain a decree for partition in this suit as to any of the other defendants. For, at the hearing, those defendants will have a right to insist that all the necessary parties are not before the court, to enable the court to decree a partition between them. Even if the deed from John C. Burhans to one of his co-defendants, which was given after the issue was joined in this cause, had purported to convey the interest in the premises which he acquired under the deed of January *4081817, which it does not, no title whatever would; have passed to the grantee in that' deed. • For it appears by; the complainants’ bill, as well as by the answers of the-appellants, that at the. time of the attempted conveyance -from-John CVBurhans, to one of his co-defendants, the whole of the premises were htild adversely, not only to‘him but to Mahlori Wing-, the grantee in-that deed. And every grant of lands is-void, and passes no title whatever to the grantee, 'if at-the time-of the delivery of the' deed such lands are in the actual possession of a third person claiming under a title adverse to that of the grantor.
Again;- the complainants, at the time of the commencement of the present suit, were neither actually nor constructively in possession of'the premises of which partition is sought; -but’the whole of such premises were possessed and claimed under the will of Cornelius' Burhans, adversely to‘the claim of the complainants as a part of the heirs at.law of the■ decedent, as well as to their claim under the deed of January,-1817. ■ Indeed, it-is apparent from the evidence, that Cornelius Burhans, the elder, must have held and claimed the premises, adversely to thetitle supposed to have been obtained under the-deed Of -1817, for some years- previous to- his death. -And the -counsel-for'the appellants is right, in supposing that- -no decree-foi‘ a partition can be made in ‘this suit, which was commenced while- the whole of the premises were -held adversely to the- title of- "the complainants; everiif such complainants should succeed-in the ejectment suit contemplated"-by ‘the decretal order appealéd from. The authority to commence a suit in -the supreme court, for the partition of land, is contained in the "first section of . the title of the revised statutes, relative to "the partition of lands owned by several persons. (2 R. S. 317.) And-by-another section of that title, the same authority-is given-to this-court to decree a partition. The" first section clearly contemplates that the party applying for partition must-not only-have-a present estate, as tenant in-common, or joint tenant,-in the ■premises of which partition is sought, but must álso -be -actually or constructively in the possession óf an undivided-share'br interest in such premises. The" language ■ of - the -statute - is, *409“ where several persons shall hold and be in'the possession of any lands, tenements or hereditaments, as joint tenants, or tenants in common, any one or more of such persons, being of full age, may apply for a division or partition of the premises.” And the sixteenth section of the same title, authorizes any party appearing in the suit to set up; as a defence,'that'the plaintiffs, or any of them, at the time of the commencement of the suit, were hot in possession of the premises, or any part thereof. (2 R. S. 320.) Whether ■ this was a new principle' introduced into the present revision of the laws, or was in accordance with the decision of the court for the correction of errors in Clapp v. Bromaghdm, (9 Cowen’s Rep. 530,) it is not necessary now to inquire. For if is evident; from the revisers’ notes to the first and seventeenth' sections of this title of the revised statutes, as reported by them, that they intended to exclude a party from instituting a partition shit, for the partition of premises held adversély to him, until after he had Obtained possession of his share of the premises, or of some part tliéreof, by ejectment or otherwise. In'their note to 'the first section' they say they have inserted the words “ be in actual possession,” to remove a doubt which existed upon the statute then in force; as explained more fully in their note to section seventeen. And iii their note to the seventeenth section, which authorized the" defendant to set up, as a defence, that the petitioners, or any of them, were not in- possession of the premises, or any part thereof, at the time of the commencement of the suit, they say: “ It is believed that- the policy of the act will be promoted by requiring ‘ that the .petitioners shall be actually in possession of some part of the premises.” It is true, these two sections refer to proceedings for partition instituted by petition,“in courts of law. But the eightieth section of the same title applies the same princi- • pie to suits for partition in this court; whether the suit here is - instituted by petition or by bill.
In the case of Jenkins v. Van Schaack, (3 Paige's Rep. 242,) where there was nothing in "the complainant’s bill' showing that the premises were held adversely to his claim, this court held that it was not necessary for him to aver that he was in pos*410session of the premises of which partition was sought, as that fact would be inferred from the allegation that the parties were seised as tenants in common; and that if the complainant had been ousted of his possession, or if the premises were held adversely, the defendant should set up that defence by plea or answer. That has been done in the present case by some of the defendants. It is not necessary, however, for the defendant to set up the defence of adverse possession specially in his. answer, or by plea, where, as in this case, the fact that the whole premises are held adversely to the complainants is distinctly stated in the bill itself. The proper course for the court in such a case is to dismiss the complainant’s bill as prematurely filed; but without prejudice to his right to institute a new suit, for the partition of the premises, after he shall have obtained the possession of his undivided share or. interest therein, by a recovery in an ejectment suit or otherwise.
The rents and profits of the premises accruing while the land has been held adversely to the claim of the complainants, even if such rents and profits had been received by one who was a joint owner of the premises with the complainants, are not properly recoverable in this court upon a bill for partition/ Or rather, they would be more properly recoverable as mesne profits, in an ejectment suit brought for the recovery of the possession of the part of the premises claimed by the complainants. In the present case, however, they have not been received by either of the defendants who are alleged to be tenants in common with the complainants; but by Anna Burhans the widow, who is not a tenant in common with any of the other parties. For she never was a tenant in common with the complainants, either under the deed of January, 1817, or as one of the heirs at law of Cornelius Burhans the elder. She entered into the possession of the premises, and has continued in such possession, as the devisee of her deceased husband, during her widowhood, or until her youngest child should have attained the age of twenty-one. And if she was not entitled to such possession, the remedy of the complainants, to recover the rents ■ and profits received by her, is by a suit or proceeding at law; after they shall have *411established their right to the possession of the premises, by an ejectment suit against her.
The part of the decree of the vice chancellor which is appealed from is therefore erroneous, and must be reversed with costs. And the part of the complainants’ bill which seeks a partition of the premises and an account of the rents and profits thereof must be dismissed. And the complainants must pay to the defendants who have appealed, their costs of the suit to be taxed. But the dismissal of this part of the bill must be without prejudice to the right of the complainants, at law if they have any, to recover the possession of the undivided interests which they claim in the premises, and to recover the mesne profits thereof. And it must also be without prejudice to the right of the complainants to apply for a partition, after they shall have established their rights, as tenants in common, either in an ejectment suit or otherwise, or shall have obtained the actual possession of the premises, or of some part thereof, as such tenants in common.