Opinion,
Mr. Chief Justice Gordon:Whilst it may be admitted that partition is an incident of tenancies in common, a right which vests in the several tenants by virtue of the title by which they hold, yet, like every other mere legal right of which persons may be possessed, it may be waived by the contract of the parties. Partners may purchase land for the use of the partnership, and take title thereto as tenants in common, and yet, during the continuance of the firm, it would, I suppose, hardly be contended that one of the partners might avoid his contract by compelling partition. In such case, this right is suspended during the continuance of the partnership, because the waiver of that right must be regarded as part and parcel of the consideration which induced the purchase. The land is bought for a special use, and as long as the necessity for that use continues, it cannot be destroyed by the act of either tenant without the consent of his co-tenant.
A better illustration of the principle here stated could not be had than that found in the case of Coleman v. Coleman, 19 Pa. 100; for here under an agreement that “ the ore banks belonging to Cornwall Furnace shall remain together and undivided as a tenancy in common,” partition was not permitted at the instance of one of the owners, during the continuance of the conditions which entered into the consideration of the contract. It is true, the learned justice who delivered the opinion of this court said, that this agreement was incorporated into the decree of the partition that had been previously made of the balance of the estate in pursuance of the contract. This, however, was a mistake; though, undoubtedly, part of the consideration for that decree, as between the parties to it, was the stipulation referred to. The commissioners, who were empowered to make partition, reported inter alia as follows: *152“ And we do further report, that the tract of land called Bingham’s Place, at Conewaga, together with a small tract of fifty acres of land adjoining thereto, and also the ore banks and mine hills of Cornwall Furnace, do still remain undivided, to be held by the said Curtis Grubb, Robert Coleman, Burd Grubb and Henry Bates Grubb, as tenants in common, according to their respective shares, and to the- covenants and articles in said agreement hereinafter recited contained.” It is thus apparent that the fifty acre tract and the ore banks were carefully excluded from the partition; were to remain undivided and to be left subject to the recited contract, and clearly the decree could not embrace lands so excluded, neither could it add force to the agreement under which the parties were acting. We repeat, therefore, that this case perfectly illustrates the principle stated; that is, where parties devote land -to a particular use, which use enters into the consideration of the contract creating it, one of the tenants in common cannot, without the consent of his co-tenants, defeat the joint purpose by a writ of partition.
The same rule applies, and perhaps a fortiori, to charities. Here, again, a case in point is found in Brown v. The Lutheran Church, 23 Pa 495, wherein we held, that a church and burial ground belonging to two distinct religious congregations, as tenants in common, under articles of association in which it was recited that they had resolved to erect jointly a house for the worship of God on “ a lot which had been purchased by both congregations, and appropriated for that purpose,” and in which it was also inter alia provided “ that the members of both congregations shall have an equal right and interest in the church and land belonging to the same,” were not within the purview of our statutes relating to partition, and therefore neither of those congregations could avail itself of that right without the assent of the other. The counsel for the appellants have endeavored to weaken the force of this case as a precedent by dwelling on the language of the learned justice deprecatory of the desecration of a grave-yard, and disturbance of the bones of the dead, and thereby assuming that ■had a cemetery not been involved in the contention, the result would have been different. But with this construction of the case we cannot agree, for a careful examination of the point *153decided will show that, excluding all immaterial dicta, it was held that the use, a charitable one, could not be destroyed in this manner at the instance of either party.
In view of the legal principle above stated, we have no difficulty in coming to the conclusion that the decree of the court below was correct. The property in controversy was, by the five congregations, purchased for and devoted to a charitable use, to wit, a parsonage and glebe for the common benefit of' all jointly. This appears by the deed itself, wherein it is set forth: “ Which several named Lutheran congregations form the Mahanoy Lutheran Ministerial Charge of said county of Northumberland.” And though by that instrument the special use does not appear, it is abundantly shown by the oral evidence. Here then is a property vested in trustees for the use of “The Ministerial Charge,” composed of the several churches therein named; and we may well ask, by what right does one of these churches assume to destroy that trust through the instrumentality of the writ of partition? Not, indeed, on the ground that St. Peter’s Church refused the services of the pastor who served the other churches, for this was its own act, and could give it no new right in the premises, but solely on the ground that St. Peter’s being a tenant in common, its light to partition is necessarily incident to its title. But, as we have already shown, even admitting the premise assumed, the conclusion is not sound, for, on all authority, this right may be waived by agreement, express or implied, of the tenants in common.
But at best these churches, as churches, have but a qualified fee. Ordinarily, we agree, that when a deed is made to trustees for a church or other charity, the fee vests at once in the association; for, the trust being raised only for the purpose of taking and passing title, it is immediately executed in the cestui que trust. But it is not so when the trust is active and continuing, as where it is created for the support of a special use. In the case in hand, the deed is to trustees for the benefit of a ministerial charge, and it is clear that the fee must remain in those trustees as long as that charge continues, and it is only after the use is extinguished that the unqualified fee can vest in the cestuis que use, and then only in those that survive the trust. Thus it is that, from whatever point we may *154view the controversy in hand, it is obvious that the plaintiff’s bill cannot be sustained.
Decree affirmed and appeal dismissed, at costs of appellants.