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Philip T. (Philip Taylor) Van Zile.

A treatise on equity pleading and practice online

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risdiction of a case for the assignment of dower. The juris-
diction of the court of chancery in England had long been
sustained where there was any difficulty in the way of the
widow's proceeding at law, as an outstanding term, the want
of information as to the title, or the want of means to estab-
lish the title of the husband in a court of law, in consequence
of the possession of the deeds by the heirs. And finally it was
decided that a demurrer to a bill for dower could not be sus-

1 In Wright v. Wright, 79 Mich. 527, frauded or improperly persuaded
the widow sought to have her dower into such an arrangement by any
assigned to her for the reason tiiat fraud or device of her liusband, she
during the life-time of her husband is entitled to full and adequate re-
he had induced her, for a very inade- dress; and, if difficulties are raised
quate consideration and by fraud u- in securing it, he or his estate — in-
lent device, to relinquish her riglit asinuch as his heirs or devisees can-
of dower. The court in that case not be regarded as howi fide pur-
held ■' that no court can sustain such chasers — must bear the risk."
an arrangement unless it is a fair -7 t'ranch (U. S.). •>70; Powell v.
and voluntary one. If a wife is de- Monson, etc. Co., 3 Mason (U. S.), ;^47.


tained, although the bill did not contain any allegation that
there was an impediment to the complainant's remedy in an
action at law. It may therefore be considered as settled in
England that the court of chancery has concurrent jurisdic-
tion with courts of law in suits for the assignment of dower." ^

In Xew Jersey it was held that as to both dower and parti-
tion the courts of law and equity have concurrent jurisdic-
tion.2 And later it was said that "dower, when founded on a
legal seizin, is a pure legal right; and while courts of equity
possess concurrent jurisdiction with courts of law for its en-
forcement, yet, in cases where no equitable principle is in-
volved, they uniformly treat the widow's dower as a strictly
legal right, and, in dealing with it, govern themselves by the
same principles which control courts of law." ' This seems to
be the doctrine in the several states of the Union.*

Formerly, and according to the English law, dower was not
allowed in equitable estates, but the general doctrine of this
country and of England has been changed by statute so that
now the right of dower is generally recognized in all classes of
equitable as well as legal estates. And where the dower is
sought to be assigned in an equitable estate, the court of equity
must necessarily have jurisdiction of the cause.'

1 Badgley v. Bruce, 4 Paige (N. Y.), dower assigned for the benefit of

98, 99; Mundy v. Mundy, 2 Ves. Jr. creditors. Seaman v. Seaman, 129

122. N. C. 293, 40 S. E. 41. In Rice v.

2Hartshorne v. Hartshorne, 2N. J. Waddill, 168 Mo. 99, 67 S. W. 605, a

Eq. 349. bill was filed by the surviving wife

•» Ocean Beach Ass'n v. Brinley, 34 for the accounting of moneys alleged

N. J. Eq. 438; Hinchman v. Stiles, 9 to have been given by the husband

N. J. Eq. 361. to his children for the alleged fraud-

4 Brown v. Bronson, 35 Mich. 415; ulent purpose of defeating the wife's
Blair v. Thompson, 11 Grat (Va.) dower rights, and for the purpose of
441; Danforth v. Smith, 23 Vt. 247; setting aside, as fraudulent, a con-
Thomas v. Thomas, 73 Iowa, 657; veyance of real estate secretly made
Wall & Burnsides v. Hill, 7 Dana, by the husband to his children on
173; Boltz V. Stolz, 41 Ohio St. 540; the eve of his marriage. It was held
Strong V. Clem, 12 Ind. 37. In Ten- that such a bill stated a cause for
brook V. Jessup, 60 N. J. Eq. 234, 46 equitable relief.

Atl. 5-26, it was held that the plaint- ^ In Smiley v. Wright, 2 Ohio, 506,

iff might file a bill in chancery to 508, the court said: "It is a peculiar

determine the widow's dower for feature of the law of Ohio that the

the purpose of satisfying an execu- widow of a deceased person is not

tion. and that in such case the court only entitled to dower in the legal

would appoint a receiver to have estate of which the husband was


§409. The procedure.— The equitable jurisdiction, as we
have seen, is generally invoked when there is discovery to be
made or impediments to be removed, and so the bill that is
filed is a bill for other relief than the mere assignment of
dower; the assignment of dower being ancillary to the real
case made. There is, therefore, no course of procedure that
especially differs from the usual course in equitj'' cases. The
bill is filed alleging such facts as make out a case which entitles
the complainant to tiie relief prayed for, namely, to a decree
removing all impediments and assigning the dower interest to
the widow. And so it follows that the defenses to the pro-
cedure are the same as defenses to the ordinary bill in equity;
they are by demurrer, plea or answer, as the case demands.

II. Partition.

§ 410. The jurisdiction.— Partition is the dividing and as-
signing to the several owners thereof their respective shares in
property. It has been said that the proceeding by partition in
most, if not in all, of its aspects is an adversary proceeding in
which a remedial right to the transfer of property is asserted,
and by its decree determines and declares a new title to the
property transferred by giving a distinct and separate right to
the several parties to whom the decree distributes the property.'
Formerly, the jurisdiction to partition property was exclu-
sively in the law court, the proceeding being instituted by a
writ of partition, but latterly that proceeding has been aban-
doned and partition is largely controlled by statutes and the
equity courts in the several states.

In an early English case it was held that the statutes author-
izing partition are often ineffectual and the jurisdiction of
equity must be invoked to do justice between the parties.^ And

seized, during coverture, but also in Reedetal. v. Whitney, 7 Gray (Mass.),

any equitable estate which he may 533; Hawley v. James, 5 Paige (N.

hold in lands at the time of his death. Y.), 318; Dubs v. Dubs, 31 Pa. St. 151;

It is in virtue of the statutory pro- Clapp v. Galloway, 56 Mich. 272;

vision endowing the widow with one- Tiederaan on Real Property, sec. 117.

third part of all the right or interest i Robinson v. Fair, 128 U. S. 53,

the husband had at the time of his 84.

decease in any lands or tenements 2 Agar v. Fairfax, 17 Ves. Jr. 533,

that the complainants claim dower 55'3; Mundy v. Mundy, 2 Vea Jr. 132

in the premises described in the bill." and notes.



[§ 410.

the United States courts have held that it is a well recognized
branch of equity jurisdiction.' It seems that the courts of
equity take jurisdiction for the purpose of getting a more per-
fect partition or allotment of the property, assigning just
shares and proportion to the parties as they are entitled to
them, and to this end have power to decree pecuniary compen-
sation to one or more of the parties when necessary (called
owelty) so as to prevent injustice or unavoidable inequality.*
The jurisdiction and procedure in partition is, however, very
largely regulated by statutes in the several states; in some
states providing that the proceedings shall be governed by
rules of equity, in others that the court of equity must con-
form to the procedure existing in courts of law.' On this ac-
count it is very difficult to lay down any general rule govern-
ing the jurisdiction of the equity court. It has been held,
however, that the court of equity has jurisdiction in cases for
partition between joint owners of land, notwithstanding a
remedy at law is given by statute.*

iKlever v. Seawall. 65 Fed. 393,
396; Bank v. Dudley, 2 Pet. (U. S.)
492, 524; Donnor v. Quartermas, 90
Ala 164.

2 Story. Eq. Jur., sec. 654. In Dall
V. Confidence Mining Co., 3 Nev. 5:^1,
535, 93 Am. Dec. 419, it was said:
'•Though partition had its origin in
the ccmraon-law courts, it is a sub-
ject over which the courts of equity
assume almost exclusive jurisdic-
tion; and in disposing of the cases
for partition, the equities of the re-
spective parties growing out of their
ownership of the property as tenants
in common or otherwise are taken
into consideration, and disposed of
upon the broad principles which gov-
ern those courts in the administia-
tion of justice. As the law deems it
against good morals to compel joint
owners to hold a thing in common, a
decree of partition may always be
insisted on as an absolute right. It
is not necessarily founded upon any
misconduct of the co-tenants or part
owners. Hence, in decreeing a par-

tition the rights and equities of all
the parties are respected, and the
partition decreed so as to do the
least possible injury to the several

^Metcalf V. Hoopingardner, 45
Iowa, 510; Hopidns v. Medley, 97
111. 402. In Patton v. Wagner, 19 Ark.
233, it was held that "V.>e staUite
but cumulates the remedy; and if,
nevertheless, a party should elect to
seek his remedy in chancery . . .
he is entitled to such as the chan-
cellor can afford him." In New York
it was held that the several codes
of procedure conferred jurisdiction
upon parties who are disseized.
Weston V. Stoddard, i:^7 N. Y. 119.

< Thayer v. Lane. Harr. Ch. (Mich.)
247. See notes in following section.
Formerly, and at common 1 iw, the
relation of joint tenancy and in com-
mon being held to be a voluntary
relation, it was held that it couid
only be dissolved by voluntary parti-
tion, but when the relation of co-
partners was involved in the owner-


§ 411. The subject-matter of the prored sire — The prop-
erty.— The subject-matter of the procedure may be either per-
sonalty or realty,* and the court is also often asked to partition
hinds and the minerals they contain. Considerable discussion
has been had as to the power of the court to partition minerals
under the surface of the soil. And where the action was to parti-
tion oil and gas, it was held that the judicial partition thereof by
assignment of the oil and gas under sections of the surface was
void. The court in its opinion said: "The decree of partition in
this case did not pretend to divide the solid minerals in the land,
as none were shown to exist; and such a partition as was made
would be inequitable and unjust if any such solid minerals
existed, for it divided the land into twelve narrow strips, and
allotted to each of the three owners several of these strips al-
ternately, so that each owner's mineral properties were divided
into several distinct strips, separated from each other by the
strips belonging to the others. This would destroy the value
of the solid minerals, for each party would have to work each
tract of his separated minerals separately, instead of having
them in one compact body. This decree is nothing more than
a decree to divide the carbon, oil, volatile minerals, gas and
gaseous vapors supposed to be or that might exist under the
land in controversy by imaginary lines drawn over the sur-
face of the land. Equity is natural justice. It is equality.
It never does a vain thing, or enforces a void or impossible
contract. Men may divide the moon by imaginary iin-s, but

sliip of the property, the reason for ciency of the remedies gave rise to

tiie rule did not exist, and to relieve the chancery partition, which was

the difficulty that existed in such assumed by the chancery court, but

casis, and in the time of Henry tite is said to have never been em-

VIII. the inabi ity of voluntariiy sep- powered by act of parliment. Hall

arating the interests of co-deieu(iants v. Piddock. 21 N. J. Kq. ol4: Story,

was relieved by statute, which em- Eq. Jur. 656c; Gay v. Parpart, 106 U.

powered joint tenants and tenants S. 679. It is now settled that when

in common to compel partition. This a clear legal title exists the claimant

was followed by other statutes which is entitled as a matter of right to a

broadened and made more general partition. Smith v. Smith. 10 Paige

the right of partition. See 81 Henry (N. Y.), 473; Willard v. Willard, 6

VIII. ch. 1. and 32 Henry Vlll, ch. 32. Mackey (D. C), 559.

The procedure is very succinctly i Godfrey v. White. 60 Mich. 443;

given in Freeman on Partition, sec. Campau v. Campau, 19 Mich. 116.
422. The inadequacy and iueffi-


equity will not enforce their contract. They may divide the
water in a well or in a brook, or the game in the forest, or the
fishes in the sea, but equity will afford them no such relief.
'Oil and natural gas are minerals, in the view of the law; but,
because of their peculiar attributes, they, as the subject of
propertv, differ from other minerals. Out of possession, there
is no propertv in them. They are not capable of distinct own-
ership in place, owing to their liability to escape from the
place where they may be temporarily confined, without neces-
sarily any interference on the part of the owner of the soil, or
others claiming through him, under whose land they may be
found. Like water, they are not the subject of propert}^ ex-
cept in actual occupancy, and a grant of them passes nothing
for which ejectment will lie. Oil and gas cannot, while in the
ground, like the solid minerals, be the subject of an estate dis-
tinct from that in the soil.' A grant to the oil and gas passes
nothing for which ejectment will lie. It is a right, not to
the oil in the ground, but to the oil the grantee may find." ^

Generally it may be said that mining property may be par-
titioned the same as other real property, even though the fee
of the land is still in the general government; the only ques-
tion being as to how the partition is to be carried out. If the
mine consists of beds of coal, placer mines or superficial depos-
its covering a considerable tract or area of land with uniform-
ity of grade and deposit, so that a just and equitable partition
might be made, no doubt partition in kind might be made,
but properties of this kind, that could be subjected to parti-
tion in kind, would be rare.^ If the mine, however, consisted
of lodes and veins, no fair division could be made, for veins
are not usually evenly distributed, nor have they uniformity
as to quality or quantity. The veins are generally irregular;
sometimes of considerable width, at other times pinching to
narrow proportions; sometimes consisting of regular veins, at
other times of larger ore deposits, pockets, shoots or kidneys,
with here and there faults, slips or horses of country rock in
the vein, so that it would be impossible to make partition in

1 Hall V. Vernon. 47 W. Va. 295, 49 436; Gill v. Weston, 110 Pa. St. 312,
L. R A. 464,465; Williamson v. Jones, 1 Atl. 921.

39 W. Va. 231, 35 L. R. A. 222, 19 S. K 2 Cecil v. Clark, 47 W. Va. 402, 81

Am. St. R 803, 35 S. E. U.


kind. In such case a decree of partition might be obtained
the same as of other property. But following the general
rule of procedure in partition cases, it would be necessary to
allege and prove that a partition of the property in kind
would be manifestly injurious to the interests of the co-own-
ers, and that a sale of the property should be made and the
proceeds divided. And there could be no difficulty in con-
vincing a court that an equitable and actual partition could
only be made by such sale of the property and division of the


It seems to be a general rule that the title to the property
must be in the parties plaintiff and defendants to the bill of
complaint, and that the court will not entertain a bill by a
stranger to the title for partition. It has been held that an
administrator who has no interest in the property except a
representative interest in the estate which he is appointed to
administer cannot sustain partition.^ The complainant must
have an actual or constructive possession of the property to
entitle him to partition where the title is a legal one. But it
has been said that: "It is unnecessary to determine whether
the question of the right to maintain such a bill can properly

be raised upon the pleadings alone, as one strictly of jurisdic-
tion, as some of the decisions would seem to indicate; or

whether the court, notwithstanding the denial of complain-
ants' title, are to look into the evidence and sustain the bill, if

the complainants' legal title is so clear as to leave no serious

question, as seems to be inferable from some of the cases.
The special province of a bill for partition is to sever

the joint possession, so that each may enjoy his share in sever-

1 Lenfers v Henke, 73 111. 405, 24 given him by statute, as in Indiana

Am. Rep ^63; Paul v. Cragnaz. 25 and Utah." Whitlock v. Willard, 18

Nev 293 59 Pac. 857; Aspen v. Fla. 166; Foster v. Newton. 46 Miss.

Rucker 28 Fed. 220; Sears v. Taylor, 661; Speer v. Speer, 14 N. J. Eq. 240;

4 Colo. 38; Freeman on Co-tenancy Nason v. Willard, 2 Mass. 478; Rich-

and Partition. 537. ards v. Richards, 136 Mass. 126; Tindal

2Ryer V. Fletcher Ryer Co.. 126 v. Drake. 51 Ala. 578; Campau v.

Cal 482 485, where it was said: "It Campau. 19 Mich. 116; Beecher t.

is we believe, universally held that Beecher, 43 Conn. 560: Throckmorton

the administrator of an estate has v. Pence. 121 Mo. 58; Nelson v Ha.s-

no such interest in the land as en- ley, 39 Fla. 145; Garrison v. Cox, 99

titles him to institute partition pro- N. C. 47a
ceedings unless power is expressly



alty, and not to try legal titles. ... If the title, though
of a legal character, be undisputed, or perhaps, though denied,
if it appear to be so clear and incontestable as to admit of no
reasonable doubt, and the court can see that a trial at law
would be a mere formality, the bill will be maintained. If the
title be an equitable one, or partly equitable and partly legal,
the court of equity may very properly try the titles, and so
probably when the title is of a purely legal character, but some
obstacle exists to a fair and perfect trial at law." ^ But it is
generally held that if the complainant is in actual or construct-
ive possession with the defendants, and his title or his co-ten-
ancy is denied by them, the title may properly be tried under
a feigned issue awarded by the court. As a general rule, how-
ever, it must appear that the plaintiff is in the actual or con-
structive possession, unless the title appears to be very clear.
And if he has no possession, and the lands are adversely held
and the title is doubtful or suspicious, the bill would seem to
be premature, and should either be dismissed or the proceed-
ings under it stayed till the complainant has an opportunity
to establish his title at law.* But where the bill was filed

1 Hoffman v. Beard, 22 Mich. 59, 62.

2 Hoffman v. Beard, 22 Mich. 59, 62;
Hemingway v. Griswold. 22 Mich. 77;
Hooper v. De Vries, 115 Mich. 231;
Miller v. Miller. 100 Mich. 563. In
Campau v, Carapau, 19 Mich. 116, it
was held that the statutes of the
state which subjected the lands to
the payment of debts in case the
personalty was not sufficient did not
create in the administrator, before
the right was exercised, an interven-
ing estate which would deprive the
lieirs of a partition of the lands. The
heirs in sucli case are entitled to
partition before the settlement of
the estate or the payment of the
debts, tliough the law requires tliem
to have an estate in possession to
maintain the suit. In Fenton v.
Steere. 76 Mich. 405, where the de-
fendant pleaded adverse possession,
and where it appeared from the evi-
dence tliat the legal title was doubt-

ful, it was held that the proceeding
should be stayed until complainant
established his title at law. In
Chanler v. Richardson, 65 Kan. 152,
69 Pac. 168. it was held that one out
of possession cannot sustain parti-
tion against one in possession who
claims the entire title. He must first
establish his title and right to pos-
session of his claimed proportion at
law. Where lands are held adversely
the remedy is first in ejectment; to
settle the title, partition will not
lie. Head v. Phiilip.s. 70 Ark. 432, 68
S. W. 878. Adverse holding, no mat-
ter how short a time, bars partition.
In re Wall's Estate, 24 Pa. Co. Ct. R.
560; Satterlee v. Kobbe, 72 N. Y. S.
675; Hanneman v. Richter, 62 N. J.
Eq. 365, 50 Atl. 904; Bacon v. Fay, 36
N. J. Eq. 411, 51 Atl. 797. In O'Brien
V. Ash, 169 Mo. 383. 69 S. W. 8. it was
held that the fact that the probate
court had ordered the executor to




praying that the defendant be declared a trustee of the title
for plaintiff and for partition of the lands, it was held that the
court having taken jurisdiction would settle the whole con-
troversy, for the reason that a court of equity will entertain a
bill to partition an equitable estate where the title is held by
defendant and the equitable interest by plaintiff, although the
defendant is in possession.^

§413. Who may enforce partition. — It appears to be a
universal rule, except in cases where it is changed by statute,
that partition can only be maintained by persons in possession,
or having the undisputed right to the possession of the prop-

take possession of real estate which
was in course of administration
would not prevent an action for
partition. But in Bender v. Terwil-
liger. 168 N. Y. 590. 59 N. E. 1118,
held that actual possession not nec-
essary. Morgan v. Mueller, 107 Wis.
841, 8 J N. W. 313.

1 James v. GroflF, 157 Mo. 407, 57
S. W. 1081. In Barr v. Lamaster, 48
Neb. 114, 66 N. W. 1110, 32 L. R. A.
451, where adjoining owners of lots
erected adjoining buildings tliereon,
having stairways, hallways, heating
apparatus and skylights in common,
and easements were granted to the
owners of the buildings each to the
other in so much of the stairways,
halls and skylights, it was held that
the easement of each in the property
of the other is owned in severalty,
and that partition of the lots at the
suit of either party would not be
authorized. The court say: "By
virtue of the agreements under
which the buildings were erected,
each party to this controversy has
an easement in so much of the halls
and skylight as is situated upon the
lot of the other, and, in the language
of plaintiff's counsel, such easements
'are in no way inconsistent with en-
tire several ownership of the two
"buildings, and the mere existence of
cross-easements does not authorize
the court to make nartition. because

each partj' owns his easement in the
property of the other in severalty.'
The defendant, it is shown, granted
to the plaintiff the easement in the
hailways and skylight voluntarily,
and for a valuable consideration, viz:
the grant to him of a cross-easement
therein. Such easement is real prop-
erty, an incorporeal hereditament,
and as much a part of the plaintiff's
estate as the building itself. The de-
fendant is not merely prohibited
from interfering with the access of
the plaintiff and his tenants to the
building of the latter by means of
the common hallways, and their free
enjoyment of the common skylight,
but equity would interfere to pre-
vent tl.e tearing down or destroying
by him of hisown building duringthe
existence of such easement. 2 Story,
Eq. Jur. (12th ed.), sec. 927; Columbia
College V. Lynch, 70 N. Y. 440, 26 Am.
Rep. 615; Henry v. Koch, 80 Ky. 391,
44 Am. Rep. 484. And, should he suf-
fer his building to decay, the plaint-
iff would have the right to enter for
the purpose of repairing, in order
to preserve his easement therein.
2 Washb. Real Prop., p. 79; Washb.
Easem. 654; Prescott v. White, 21
Pick. (Mass.) 341, 32 Am. Dea 266:
McMillan v. Cronin, 75 N. Y. 474."
Bouham v. Weymouth, 39 Minn. 92.
And see Welsh's Appeal, 126 Pa. St.
297. and cases cited-



[§ 412.

erty. If one claims the property adversely to those in actual
possession there could be no common or joint right, and the
remedy would clearly be by an action at law to settle the
right in an action of ejectment. It has been said that " the
substance of the principle is, that purely legal titles are to be
tried at law, and parties are entitled to have them so tried

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