This was a proceeding in chancery, for a partition of certain real estate, of which the complainant claimed an undivided half. The record clearly shows that she was entitled to the interest claimed; but her claim for partition is resisted, upon the ground that the lands sought to be divided, were, at the time of filing the bill, and for some time previous had been, in the adverse possession of the defendants.
They also filed a cross-bill, claiming the right, in case of a division, to reserve certain improvements put upon portions of the lands, or pay for the same in case of a sale.
The Circuit Court decreed that complainant have partition of the lands mentioned in her bill, and that one half of the same be set off to her, and appointed commissioners to make the division.
The defendants object to this decree, upon the ground that the complainant was disseized of the premises at the time of filing her bill, and for the further reason, that the matters alleged in the cross-bill are not disposed of by decree.
The case has been argued, as if it were a proceeding under the statute upon the common law side of the court, when, in fact, it is strictly a chancery proceeding, in all its features. The jurisdiction of courts of equity, in matters of partition, is undoubted. Indeed, in a great variety of cases, especially where the property is of a complicated nature, as to rights, easements, modes of enjoyment, and interfering claims, the interposition of a court of equity seems indispensable for the purposes of justice. The remedy, in equity, is often more complete than at law; as where one tenant in common has been in the exclusive reception of the rents and profits, on a bill for partition and account, the latter also will be decreed. “ So when one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or, if that cannot be done, he will be entitled to a compensation for the improvements.” 1 Story, Eq. Juris. § 655, 656.
It was said, in the case of Parker v. Gerard, Amb. 236, “ That such a bill is matter of right, and there is no instance of not succeeding in it, but where there is not proof of title in plaintiff.” See also Cooper, Eq. Pl. 135; 2 Dan. Ch. Pr. 770; 1 Story, Eq. Juris. § 646 to § 658.
It is unnecessary, in our view of the case, to inquire whether the possession of the defendants was adverse, or not; or, if adverse, whether a petition for partition under the statute would lie. The common-law mode of proceeding for partition, has been greatly extended by our statute, which is more comprehensive than that of any other State to which reference has- been made, and it may well be questioned, whether adverse possession, without regard to length of time, would bar a proceeding under it. There can be no doubt, however, that a bill in chancery lies for partition, notwithstanding an adverse possession, unless it has been continued sufficiently long to bar a recovery under the statute of limitations, which is not pretended in this case. Overton v. Woolfolk, 6 Dana, 374.
Where the title is denied, and is of a doubtful character, courts of equity have sometimes required the party seeking a partition, to establish his right at law, before proceeding with the partition suit; but when, as in this case, the title is clear, equity will at once decree a partition between the parties. Cartwright v. Pultney, 2 Atk. 380; Agar v. Fairfax, 17 Ves. 543; Allen v. Barkley, 1 Speer, Eq. Rep. 264; Oldhams v. Jones, 5 B. Monroe, 458.
The husband of the complainant could convey no greater interest in the real estate of his wife than he himself had. Plis right in the land of his wife, being an estate during coverture, is terminated by a divorce a vinculo matrimonii, granted for his misconduct. Rev. Stat. ch. 34, § 12; Clarke v. Lott, 11 Ill. 105; Starr v. Pease, 8 Conn. 541.
We perceive no error in the omission to dispose of the cross-bill at the same time the decree for partition was made. We will not now undertake to determine whether the defendants are entitled to pay for improvements, or not. The Circuit Court might, with propriety, if warranted by the facts before it, have directed, at the time of the appointment of commissioners, that in making partition, they should, if practicable, set off to defendants those portions of the premises, including their improvements ; but it was not absolutely necessary that such an order should have been made at that time. It may be that the premises will have to be sold, in consequence of not being susceptible of division ; and, in that event, it may be that the defend-, ants should be allowed the actual increase of the price received at the sale, in consequence of the improvements by them made. Louvalle v. Menard, 1 Gilm. 45.
These questions can, however, all be disposed of in the future proceedings to take place in the case; and it will be time enough for this court to act upon them, after the Circuit Court shall first have done so.
That the complainant is entitled to partition of the premises, there is no doubt.
The decree of the Circuit Court is affirmed, at the costs of the appellants, and the cause remanded for further proceedings.
Decree affirmed.