Under the Act of August 15, 1876, c. 297, relating to partition
of real estate in the District of Columbia, a tenant in common in
fee, whose title is clear, may have partition as of right, but by
division or sale, at the discretion of the court.
A pending lease for years is no obstacle to partition between
owners of the fee.
A bill in equity, under the Act of August 15, 1876, c. 297, need
set forth no more than the titles of the parties, and the
plaintiff's desire to have partition by division of the land, or,
if in the opinion of the court this cannot be done without injury
to the parties, then by sale of the land and division of the
proceeds.
This was a bill in equity filed January 3, 1888, by Henry K.
Willard against Joseph C. Willard, under the Act of August 15,
1876, c. 297, which is copied in the margin,
* for
partition
Page 145 U. S. 117
of land in Washington bounded on Pennsylvania Avenue on the
south, Fourteenth Street on the east, and F Street on the north,
containing more than 33,000 square feet, and with the building
thereon known as "Willard's Hotel."
The allegations of the bill were that the plaintiff and the
defendant were the owners of the land in fee simple as tenants in
common, and each the owner of an undivided half; that the plaintiff
became and was the owner of his half under a deed from Henry A.
Willard, dated December 1, 1887, and duly recorded, and that the
plaintiff desired to have partition of the land, and to have his
share thereof set apart to him in severalty, or, if in the opinion
of the court the land could not be specially divided between the
parties without loss and injury to them, and to the purposes for
which the land was used, that, for the purposes of partition, it
might be sold and the proceeds divided between him and the
defendant, and he prayed for partition accordingly.
The answer, filed March 6, 1888, alleged that the plaintiff's
father, Henry A. Willard, and the defendant, were the owners in fee
simple, as tenants in common, of the land, and that it was of great
value, and for the past twenty-five years and upwards had been
leased by Henry A. Willard and the defendant to different persons
for hotel purposes, and was now under lease and used as an hotel at
a remunerative rental; that the defendant had no knowledge of the
conveyance to the plaintiff, and required proof thereof, and denied
that the defendant should be compelled to make or suffer partition
of the land, or that it was within the power of the court to
deprive him, against his will and without his consent, of his
interest and estate in the whole land either by a partition in
severalty or by a sale thereof.
Page 145 U. S. 118
A general replication was filed, and proofs taken, which showed
the following facts: the defendant and Henry A. Willard made a
lease of the land for five years and four months from January 1,
1884, at an annual rent of $20,500, to Phoebe D. Cook, which was
afterwards assigned, with the lessors' consent, to Orring G.
Staples. On December 1, 1887, Henry A. Willard conveyed to the
plaintiff an undivided half of the land in fee simple by deed duly
recorded. The property was peculiarly adapted to hotel purposes,
and was worth in its present condition more than $600,000, and
could not be divided without serious loss.
The court in special term, on July 7, 1888, ordered a sale in
accordance with the provisions of the act of Congress, and
appointed trustees to make a sale and conveyance, and to pay the
proceeds into court. The decree was affirmed in general term, on
October 22, 1888. 6 Mackey 559.
The defendant appealed to this Court, and assigned the following
errors in the decree:
"1st. The property was under lease for a term of years at the
time the bill was filed, and the plaintiff not entitled to
possession."
"2. Under the Act of Congress of August 15, 1876, a tenant in
common has not an absolute right to partition, but it is
discretionary with the court, and something besides the existence
of the tenancy must be averred and shown in order to call such
discretion into exercise, which was not done in this case. "
Page 145 U. S. 120
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
In a court having general jurisdiction in equity to grant
partition, as in a court of law, a tenant in common, whose title in
an undivided share of the land is clear, is entitled to partition,
as a matter of right, so that he may hold and enjoy his property in
severalty. Story, Eq.Jur. §§ 653, 656;
Parker v.
Gerard, Ambler 236,
Calmady v. Calmady, 2 Ves.Jr.
568;
Wiseley v. Findlay, 3 Rand. 361;
Smith v.
Smith, Hoffman Ch. 506, and 10 Paige 470;
Donnell v.
Mateer, 7 Iredell Eq. 94;
Campbell v. Lowe, 9 Md.
500.
Under the English statutes of 31 Hen. VIII. c. 1, and 32 Hen.
VIII. c. 32, in force in the State of Maryland before 1801, and
Page 145 U. S. 121
therefore in the District of Columbia, any tenant in common in
fee might compel partition at law by division of the estate held in
common. Alexander's British Statutes in Maryland 311, 312, 332;
Lloyd v. Gordon, 2 Har. & McH. 254; Rev.Stat.D.C.
§ 92. It is unnecessary to consider how far the Supreme Court
of the District of Columbia had equity jurisdiction in cases of
partition before the Act of Congress of August 15, 1876, c. 297,
because this act expressly empowers the court, exercising general
jurisdiction in equity, in its discretion, to compel all tenants in
common of any estate, legal or equitable, to make or suffer
partition, either by division of the estate, or, if it
satisfactorily appears that the estate cannot be divided without
loss or injury to the parties interested, then by sale of the
estate and division of the proceeds among the parties, according to
their respective rights and interests. 19 Stat. 202. This statute,
while it authorizes the court to compel a partition by division or
by sale at its discretion as the facts appearing at the hearing may
require, does not affect the general rule governing every court of
law or equity having jurisdiction to grant partition, that
partition is of right, and not to be defeated by the mere
unwillingness of one party to have each enjoy his own in
severalty.
In equity, as at law, a pending lease for years is no obstacle
to partition between owners of the fee. Co.Lit. 46a, 167a; Com.Dig.
Parcener, C. 6;
Wilkinson v. Joberns, L.R. 16 Eq. 14;
Hunt v. Hazelton, 5 N.H. 216;
Woodworth v.
Campbell, 5 Paige 518;
Thruston v. Minke, 32 Md. 571;
Cook v. Webb, 19 Minn, 167. The decision in
Hunnewell
v. Taylor, 6 Cush. 472, cited by the appellant, was governed
by an express statute of Massachusetts authorizing a petition for
partition "by any person who has an estate in possession, but not
by one who has only a remainder or reversion," which was presently
modified by an enactment that partition might be had
notwithstanding the existence of a lease of the whole or part of
the estate. Mass. Stat. 1853, c. 410, § 1; Gen.Stat. c. 136,
§§ 3, 67; Pub.Stat. c. 178, §§ 3, 68. In
Moore v. Shannon, 6 Mackey 157, there was an outstanding
life estate, so that the plaintiff was not in possession of the
freehold, and
Page 145 U. S. 122
was therefore denied partition.
See Co.Litt. and
Comyn's Dig.,
ubi supra; Evans v. Bagshaw, L.R. 8 Eq. 469,
and L.R. 5 Ch.App. 340;
Brown v. Brown, 8 N.H. 93.
The present bill, after setting forth the titles in fee of the
parties, alleges that the plaintiff desires to have partition of
the land and his share set apart to him in severalty, or, if in the
opinion of the court this cannot be done without injury to the
parties and to the purposes for which the land is used, then by
sale of the land and division of the proceeds, and prays for
partition accordingly. The bill, following the statute, and seeking
partition in either mode, as the court in its discretion might
think fit, is in proper and sufficient form. Any allegation of
special reasons for partition, or for having it made in one way or
in the other, would have been unusual and superfluous. The
decisions in Maryland cited by the appellant were made under
statutes authorizing partition only when it would be for the
interest and advantage of the parties that the land should be sold,
and therefore held that it must be so alleged in the petition.
Tomlinson v. McKaig, 5 Gill. 256;
Mewshaw v.
Mewshaw, 2 Md.Ch. 12.
This disposes of the only errors assigned or argued. It is not
denied, and could not be, upon the proofs, that if the plaintiff
was entitled to partition, it was rightly ordered to be made by
sale, and not by division of the estate.
Decree affirmed.
MR. JUSTICE BREWER was not present at the argument, and took no
part in the decision.
*
"
An act relating to partition of real estate in the District
of Columbia"
"SEC 1. All tenants in common and co-parceners of any estate in
lands, tenements, or hereditaments, equitable as well as legal,
within the District of Columbia may, in the discretion of the
court, be compelled in any court of competent jurisdiction to make
or suffer partition of such estate or estates. In proceedings for
partition, all persons in interest shall be made parties in the
same manner as in cases of equity jurisdiction, and in proceedings
for partition under this act, the court may, in addition to the
powers herein conferred, exercise such powers as are or may be
conferred by virtue of the general equity jurisdiction of the
court."
"SEC. 2. The court in all cases, in decreeing partition, may, if
it satisfactorily appears that said lands and tenements, or any
estate or interest therein cannot be divided without loss or injury
to the parties interested, decree a sale thereof and a division of
the money arising from such sale among the parties according to
their respective rights and interests."
"SEC. 3. In all such sales, unless the court shall by special
order direct or require, on good cause shown, that the sale be made
for cash, the purchase money shall be payable one-third on day of
sale, one-third in one year, and one-third in two years thereafter,
with interest, the deferred payments to be secured to the parties
according to their respective interests by good and sufficient
mortgage upon the premises so sold, which shall be subject to the
approval of the court."
19 Stat. 202.
