The opinion of the court was delivered by
Collins, J.The partition reported by the commissioners has not, in the judgment of any member of this court, been successfully impugned; but some of my brethren think that any partition should be stayed until final determination on the accounting in the suit in the federal court referred to by Vice-Chancellor Green. If a majority of the court held that opinion, it would be matter of regret that the objection had not been presented in limine by an appeal from the decree appointing commissioners. It savors of disingenuousness to experiment with a partition at very considerable cost to the co-owners and then press the objection to having auy partition at all, especially in the light of the offer made in the brief filed for appellants, to waive all objections upon condition that the allotment reported be changed so as to give the appellants the share awarded to another owner.
The facts of the case were clearly stated by the vice-chancellor, and his reasons for not delaying partition seem to me conclusive. In this connection also, the opinion of the late Mr. Justice Bradley may be profitably read. Chandler v. Pomeroy, 46 Fed. Rep. 533, 545. His decision that the agreement was not valid was reversed, but the remarks on the subject of partition were not criticised in the supreme court. That tribunal left the matter to be settled by the circuit court after remittitur, and when we find that court decliniug jurisdiction and dissolving its injunction against the chancery partition, it would seem proper that such partition should proceed.
The only reason suggested for delay in severing the common ownership of the parties, and the only reason possible to suggest, is that the accounting of the personal estate may show something due appellants from the other owners, which, under the agreement, may be chargeable on the real estate. The parties have voluntarily divided about $500,000 worth of personal estate. They could very easily have withheld a fund sufficient to make the necessary adjustment, for the margin of difference was well known to all of them. The master’s report to the federal court shows a small balance in favor of appellants, but both sides have excepted and no one can tell when the contest will end. It is *577not even hinted that the respondents are pecuniarily irresponsible;, indeed, it is perfectly clear that they are possessed of large means. If the appellants have a lien, either legal or equitable,, upon the real estate, it will attach to the divided shares. Gen. Stat. p. 2430 § 36; Speer v. Speer, 1 McCart. 240.
There will be no more danger from bona fide purchasers after partition than before, for in either case any purchase will be pendente lite. Partition simply permits each owner to enjoy his- or her share in severalty instead of in common, and I can see no-objection to the exercise now of that undoubted right. The decree and partition thereunder should be affirmed.
For affirmance — The Chief-Justice, Collins, Gaeeison, Lippincott, Ludlow, Bogeet — 6.
For reversal — Depue, Dixon, Gummebe, Van Syokel, Hendeickson, Nixon — 6.