The petitioner seeks for an order of sale of certain real estate in which she is interested in common with the respondents.
The facts appear in the finding of the Superior Court, to which reference must be had.
The first claim made by the respondents is that the Superior Court has no jurisdiction to order the sale of the estate, the same being owned by the parties as devisees under the will of Nehemiah Brown deceased, and being, as the respondents say, within the exclusive jurisdiction of the probate court.
The power conferred upon the Superior Court to order the sale of property in which several persons are interested is very broad. By the 41st section of the Act regulating proceedings in Equity it extends to real estate held in joint-tenancy, in common, coparcenary, or otherwise. And by chapter 43d of the Acts of 1866 it extends to a>ny real estate in which, or any portion of which, two or more persons have different and distinct interests. The court of probate has no power to order the sale of real estate merely because of the difficulty of dividing it. The jurisdiction of that court is limited *12to the distribution among joint devisees, and cases may arise where the, Superior Court should order a sale of real estate of which the distribution might pertain to the jurisdiction of the court of probate.
But although extensive powers are vested by the statutes above referred to in the Superior Court, the power always has been and always ought to be very cautiously exercised. The compulsory sale of one’s property without his consent is an extreme exercise of power warranted only in clear cases.
By the express terms of the statute it is warranted only “ whore a sale will better promote the interest of the parties in interest,” that is, will better promote it than a partition.
In this case the Superior Court finds “ that the estate sought to bo sold can be as wrell distributed and aparted into three divisions, (namely, between the petitioner, the heirs of Julia Kirk, deceased, and Eliza Snyder and her children,) as it can bo sold and the avails of 'such sale divided in the same proportion to the same pai’ties, providing said land can be sold in accordance with the statute; but said estate cannot be as well divided among all the parties in interest as the same can bo sold and the avails thereof distributed to each party in interest in proportion to his or her respective share.”
Upon this finding we think the order of sale ought not to be made. The petitioner can have her third part set out to her without difficulty. So far as setting out her share to her the land is capable of partition and full justice can by the partition bo done to her. Why then should she be permitted to demand a sale, if, so far as the petitioner is concerned, a sale will not better promote her interest than a partition ?
Will it better promote the interest of the respondents ? The counsel for the petitioner say it is so found, and claim that the petitioner may on that ground demand a sale, but the respondents object, and we think the petitioner carfnot force upon them a boon which they do not seek. The respondents prefer that the property should be divided into three parts, that the petitioner should take1 hers in severalty, wdiereby she gets her fair share, and that the remaining two *13third parts should not be sub-divided. We think the petitioner as a devisee of one third of her father’s estate has no interest in this sub-division among the children of her sister. The petitioner has no right to require such sub-division to be made; no right, to put those children to an election between a sale and a partition so far as she and her rights are concerned. The fact that a sale is better than the sub-division is irrelevant and immaterial, since neither the sale nor the subdivision are necessary to the enjoyment by the petitioner of all her rights in the premises.
Besides her interest as devisee under her father’s will, the petitioner has a mortgage upon the share of the children of her sister, Mrs. Kirk, and the claim is made that this fact should have some weight in favor of ordering the sale sought for. But we think her appropriate remedy as mortgagee is by foreclosure. The statutes above referred to authorizing sales cannot be construed as extending the remedy of mortgagees and as authorizing the sale of mortgaged premises upon application of the mortgagee.
It appears also that there has been a sale of portions of the real estate of Mr. Brown to pay taxes, and the petitioner claims title to the portions thus sold. Whether the sales thus made were regular and legal does not appear, nor is it found whether the petitioner’s title is or is not good under them. Upon the statement of facts in the finding there is reason to doubt the validity of the alleged tax title. If Mrs. Ford has good title under the tax collector, then, quoad the land thus owned in severalty by her, they are out of the case, and are not subjects of partition or of an order of sale by the Superior Court. If however it be true, as seems probable from the finding, that there is a contest in regard to these tax titles, there ought to be no order of sale until that contest is- settled; and such contest cannot in general be settled upon the petition for sale, but ought to be settled as a preliminary matter in an independent suit.
For the several reasons thus given, wo advise the Superior Court to dismiss the petitioner’s bill.
We have no occasion to decide upon the validity of the dis*14tribution of tbe estate made by the court of probate. The remedy for the parties, if they are dissatisfied with that distribution, is by appeal.
In this opinion the other judges concurred.