delivered the opinion of the court:
Appellants contend that the court erred in sustaining the demurrer to and dismissing their cross-bill. It is contended that the partition proceeding must embrace all the land held in common by the parties. We do not understand the rule to be as broad in its scope as appellants contend it is. A court of equity will not entertain a bill for partition of a tract of land held in common, by fragments. A suit for partition should always embrace the whole tract held by the co-tenancy, but it does not follow that those who are mutually desirous of continuing the relation of co-tenants in one tract cannot do so without foregoing their right to a partition of other distinct tracts as to which a partition is desirable. It is true that a few cases may be found which seem to hold that a partial partition is improper under all circumstances, but the decided weight of authority is the other way. (Freeman on Co-tenancy and Partition, sec. 508.) But even if the rule were as the appellants contend, the facts set out in the cross-bill would not bring the case within it. So far as the record shows, the original bill brought all of tire real estate of which Benjamin Dickson died seized, under the jurisdiction of the court and prayed partition thereof. The legal title to the eighty acres described in the cross-bill was in Sarah J. Dickson, and had been for a number of years before Benjamin Dickson died. Before a partition of this eighty acres could be had among the heirs of Benjamin Dickson it would be necessary to have the deed of Sarah J. Dickson set aside. This would involve litigation of matters entirely foreign to the right of the widow to have her dower assigned and of the heirs to a partition of the one hundred and sixty acres, the title to which was in no way involved in the complications respecting the eighty-acre tract. In our opinion the circuit court decided correctly in holding that the matters set up in the cross-bill were not germane to the original bill.
By their motion for leave to amend the cross-bill appellants sought to have the mortgage of Augustus apportioned upon the two hundred and forty acres which were included in the mortgage. This amendment the court denied. If it be conceded that the proposed amendment would have obviated the objection to the cross-bill, it was within the sound legal discretion of the trial court to deny the motion, and in view of the fact that the application for leave to amend was not made until some days after the final decree had been rendered on the original bill, we cannot say that there was an improper exercise of discretion in denying leave to make the amendment. We do not, however, see how the appellants’ position would have been any better if the amendment had been allowed. The mortgagee, of course, has a right to a lien upon all the land included in the mortgage, but he is not insisting upon such right in this proceeding. Appellants have no authority to claim those rights for him. If, as appellants seem to assume, the owners of the eighty acres are liable for some part of the mortgage indebtedness and the same is a lien upon both tracts, they can, after paying the debt, file a bill for subrogation and have the equities of the parties adjusted. Clearly, the court cannot foresee how or by whom the mortgage indebtedness will be paid. It may require all of both tracts, for aught that appears at this time. There was no error in denying leave to make the proposed amendment to the cross-bill.
The decree of the circuit court of Edgar county is affirmed.
Decree affirmed.