The plaintiffs allege, in their bill, that j they, together with the defendants, are tenants in common of ¡certain rights of digging, raising and carrying away iron ore .from the Davis ore bed in Salisbury; that they are disturbed in the exercise of this right, by the improper interference of some of the defendants, by reason of which they are deprived of the enjoyment of their common property. They pray for a partition, by a sale of the premises, according to the provisions of the statute of 1853, entitled “ an act in addition to an act for the regulation of proceedings in equity.” This act authorizes a sale, by an order of a court of equity, of real estate, and of any rights, corporeal or incorporeal, existing or growing out of the same, which are held in joint tenancy, tenancy in common, or coparcenary; whenever partition can not conveniently be made in any other way, and directs a distribution of the avails among the tenants, in proportion to their respective rights.
*97The bill is demurred to, and the facts alleged are admitted to be true.
The grounds of demurrer are, that the statute is unconstitutional ; or at least, has an unconstitutional effect upon the rights of these defendants.
It is claimed, that it authorizes the court, upon the application of one or more tenants in common, and representing, as in this case, a small minority of interest, to compel the sale of the rights of all others, depriving them, in invitmi, of their property, merely to accommodate others, and without reference to the public interests. There may be extreme hardship in this, but is it therefore unconstitutional ?
The statute in question does not profess to deprive any one of any interest in his property, but only to afford a reasonable remedy for its enjoyment, by partition.
The right of partition is incident to all real estate holden in common, whether corporeal or incorporeal, and especially whenever it can not be otherwise enjoyed. The right of beneficial enjoyment of property is as essential as the right of ownership. And, indeed, by the principles of the common law, recognized by stat. 31 apd 32, Hen. VIII., this right of partition enters into the very nature of the title of estates holden in common, and is inseparable from them. The only question is, how can it best be made ?
The statute giving the power of sale introduces, as we think, no new principle; it provides only for an emergency, when a division cannot be well made, in any other way. The Earl of Clarendon v. Hornby, 1 P. Wms., 446. 4 Kent’s Com., 365.
A partition of joint estates, made by a writ of partition, at common law, or as provided by statutes, operates to divest one tenant of his interest in some part of the joint or common estate, and vest it solely in another. The tenants are seized per my, or per my et per tout,—this seizin is, by partition, destroyed, as much as in a case like the present.
*98It is said, that this common right is incapable of assessment or valuation; that its essential value is beneath the ground, and beyond the inspection and judgment of men. This may be true, and yet it presents no constitutional objection to the law; nor indeed any greater difficulty, than if the same rights were to be appraised upon execution against one or all of the tenants.
The instances are common, wherein it becomes necessary to cause the sale of real estate, without the concurrence or consent of the proprietor; and statutes authorizing this are to be found in every state; as in the cases of the sale of minors’ land, and the lands of idiots, lunatics and persons under conservators and guardianship. No constitutional objections to any such statutes have ever been urged.
But it is further claimed, that this statute is retroactive, and subversive of the great principles of moral right, and is therefore unconstitutional.
If this were, in fact, a retroactive law, it would not, for such cause, be an unconstitutional one. And for the reasons to which we have before adverted, we do not discover in it any of those features of injustice, which should characterize it, as destroying vested rights, or as being otherwise destructive of the fundamental principles of the rights of property, secured by the constitution.
But this statute is not retroactive, within the legal import of that term. It is purely a remedial law, acting upon existing rights, and providing a remedy ;for existing evils ; disturbing no titles.
The bill avers, that the right or claim of Landon & Co., who are some of the defendants, as the plaintiffs suppose, is derived, as lessees under Forbes Monson, one of the tenants in common; and therefore the further claim of the- plaintiffs is, that the effect of the statue referred to, if enforced in this case, will be, to destroy this right under the lease, and impair the obligation of this contract.
The object of the statute in question is only to provide a *99reasonable remedy for joint owners of real estate, and has no reference to contracts, even remotely. Many laws affect contracts incidentally, and are not, for such cause, to be treated as unconstitutional; such as embargo laws, commercial regulations in general, revenue laws, &c.
But we can not know, at this time, how Landon & Co’s lease will be affected by a sale of the property in question: Monson may become the purchaser, and confirm the lease; or the court, perhaps, by its decree, may protect all such or other rights connected with the estate to be sold.
We must advise the superior court, that the bill is sufficient.
In this opinion the other judges concurred.
Bill sufficient.