delivered the opinion of the court October 6th, 1884.
Clapp and others granted, demised and leased unto Hague “ the exclusive right for the sole and only purpose of mining and excavating ior petroleum, rock or carbon oil, all that *66certain tract of land,” being one half of a large number of lots, the lessee “ to have one half of the above lots in alternate quarters,” and “to hold the said premises exclusively for the said purposes only,” for the term of twenty years. The purpose of the lease is first named, but that the land is leased for that purpose is as plain as if the description of the land preceded the clause restricting its use. Eollowing the description, it is stipulated that the lessee shall have alternate quarters, and hold the premises exclusively for said purpose. The lessors except out of the demise the improved land, and may use all the land for tillage and lumbering which is not necessary for mining or producing oil. A portion of the oil that may be produced is reserved as rent or royalty. Failure of the lessee to perform his covenants will avoid the lease. Notwithstanding these stipulations, the lessee is vested with an interest in the land: Chicago and Allegheny Oil and Mining Co. v. U. S. Petroleum Co., 57 Pa. St. 83. His interest is that of a tenant for years for the purpose of mining, he has an absolute right of possession of all the surface necessary, and no one else can rightfully take out oil during the •term, save under him. The whole of the oil, or only a part, may be taken under the lease, but whatever shall be taken is •of the substance of the realty. He is not an absolute owner •of the whole of the oil as he would be were all the oil in place conveyed to him in fee.
Prior to the execution of the lease, one of the tenants in .common had mortgaged his undivided one fourth of the lands, .and subsequently said fourth was sold in satisfaction of the mortgage. By agreement the purchaser made partition with the other owners of the fee, acquiring' thereby his part in severalty. It was competent for them with respect to their ■own interests to divide the land as they pleased, and they did. Two entire tracts were allotted to the purchaser, and the plaintiffs holding under him claim that said tracts are freed from the lease. It is not denied that the undivided one fourth ■of the tracts was so freed by the sheriff’s sale, but the defendant insists that neither by action in partition without making him a party thereto, nor by agreement, can the owners in fee divide the land to his prejudice. His lease entitled him to ■ alternate quarters of each tract, a right that has been impaired by reason of-the lien that existed on the undivided fourth, but subsisting as to the other three fourths. If anything be needed to show how he is likely to be injured or how the value of his lease is probably lessened, by excluding him from the tracts now owned in fee and severalty by the plaintiffs, it may be found in the opinion of the learned judge of the common pleas.
*67Under tbe lease tbe defendant’s right is an estate, not a lien. It is settled that a lien creditor of a tenant in common is not entitled to notice of partition, and if partition be fairly made, thereafter the lien shall be exclusively on the part allotted to the debtor. This is so with a mortgage, for though in form, a deed and clothing the mortgagee with some of the benefits of a purchaser, in other respects it is only a security for a debt: Long’s Appeal, 77 Pa. St. 151. The security is as ample on a separate fourth part as on an undivided fourth, and a lien creditor is not prejudiced by an equal and just partition. But such partition might be made among tbe owners in fee, and the lessee of one of them be deprived of all future benefit from bis lease, if he can be shifted to the part allotted to bis lessor; as in case of the lease of a tract part of which is woodland, for residence and tillage, and the woodland alone be allotted to the lessor, the woodland being of equal value with tbe improved.
The term of a tenant for years may be so short, or his lease of such nature, that he has no real interest to protect in the partition. In equity when a lessee has a long term of years under a tenant in common of the freehold, he is entitled to partition against the other tenants in common, without bringing the reversioner of the share demanded before tbe court: 1 Daniel Ch. Pr. 257. Nor does it constitute any objection that tbe partition does not finally conclude the interests of all persons. Partition will be made among the parties before the court, who possess competent present interests, such as a tenant for life or years: 1 Story Eq. Jur. § 658. A partition by contract may be conscionable between the parties, and so unjust as to others that it ought not to affect them. Why should it be permitted that a landlord may agree with other tenants in common to a division prejudicial to his lessee so as to bind the lessee? When the other tenants in common have actual or constructive notice of the lease, it is inequitable that they should join in depriving the lessee of his rights, and no precedent has been cited, sanctioning such proceeding. In this case White had express notice of the lease from the lessors, and after the partition said to Hague, — “You are now my lessee of tract No. 108, I would like to have operations commenced.” But the plaintiffs purchased without other notice than that furnished by the record.
If it be that partition by contract has like effect as partition at law, a tenant for years who is not a party shall not be prejudiced. The statute of 32 Henry VIII., c. 32, enables tenants in common where one or some of them have an estate for life or years with other or others who have *68an estate of inheritance or freehold, to have partition; and provides that no such partition or severance shall be prejudicial or hurtful to any person not a party to such partition. This statute is reported by the judges, and so published, to be in force in Pennsylvania. Any person, by its terms, may be a party who is entitled to partition. Partition is of right between tenants in common when some hold an estate for years and others a freehold estate, and no such person shall be prejudiced or hurt unless he be made a party.. In support of the position that a person who has not a freehold interest in the land cannot be made a party in partition with the owners of the fee, the plaintiffs cite McKee v. Straub, 2 Binn. 1; Long’s Appeal, 77 Pa. St. 151; and Mark v. Mark, 9 Watts 410. The last two cases are not in point. Mark v. Mark was decided on the ground that neither the widow nor the executors of a decedent, who was a tenant in common in his lifetime, had an estate in the land. Long’s Appeal ruled that a mortgagee cannot be a party in partition of land owned by the mortgagor and others as a tenant in common, and that the lien of the mortgage attached to the part taken by the mortgagor in severalty. In McKee v. Straub the decision wras put on two grounds; first, that the action had abated by the death of one of the parties; and second, that the tenants had not a freehold estate. The first was fatal. The second received very brief remark, and neither counsel nor court noted the statute of 32 H. VIII., c. 32. Had that statute been brought to the attention of the court, instead of others which did not touch the point, the reversal might have been on the first ground alone. Be that as it may, it seems clear that the statute was not considered and that misconstruction thereof is not demanded by the decision.
Judgment affirmed.