WALKER v. DILWORTH, 2 U.S. 257 (1796)

U.S. Supreme Court

WALKER v. DILWORTH, 2 U.S. 257 (1796)  2 U.S. 257 (Dall.)

Walker
v.
Dilworth, et al.

Supreme Court of Pennsylvania

September Term, 1796

This was a summons in partition, on which the plaintiff, as tenant by the curtesy, demanded partition against the defendants, under the circumstances stated in the following declaration.

Philadelphia County, to wit: Ann Dilworth, the elder, late of the said county, widow, and Ann Dilworth the younger, late

Page 2 U.S. 257, 258

of the same county, spinster, were summoned to answer Samuel Walker, as tenant of the curtesy of the real estate of his late wife, Elizabeth, deceased, of a plea, &c. Whereas the said Samuel, Ann Dilworth the elder, and Ann Dilworth, the younger, held together and undivided one messuage, & c. which the said Ann Dilworth, the elder, and the said Ann Dilworth, the younger, deny to make partition thereof between them, the said Samuel, the said Ann Dilworth, the elder, and Ann Dilworth, the younger, according to the custom of the Commonwealth of Pennsylvania, and the form of the statute in such cases made and provided; and do not permit the same to be done, unjustly and against the said custom and the form of the statute in such cases made and provided. And whereupon the said Samuel, by John Craig Wells, his attorney faith, That whereas they the said Samuel, Ann the elder, and Ann the younger, held together and undivided the tenements aforesaid, with the appurtenances in three equal parts; to be divided for and during the term of his natural life, and the reversion thereof to Nancy Walker, the daughter of the said Samuel, by his said wife Elizabeth; and it belongeth to the said Ann the elder, to have one other third part of the said tenements, with the appurtenances, for the during the term of her natural life, and after her death the remainder and reversion of the said last mentioned third part, one moiety thereof unto the said Nancy, in feveralty forever; and the other moiety of the said last mentioned third part, after the death of the said Ann the elder, unto the said Ann the younger, in feveralty forever. And it belongeth to the said Ann the younger, to have the other third part and residue of the tenements aforesaid, with the appurtenances in feveralty forever: So that the said Samuel of his third part happening to him during his life with the appurtenances; and the said Ann Dilworth the elder, for and during the term of her natural life, her third part of the tenements with the appurtenances happening to her; and the said Ann Dilworth the younger, her one third part of the tenements with the appurtenances, and the reversion of the moiety of the third part happening to the said Ann Dilworth the elder, after the death of the said Ann the elder, to the said Ann Dilworth the younger in feveralty forever, they may severally improve themselves; But the said Ann the elder, and Ann the younger, deny to make partition thereof between them, according to the said custom and the statute in such case made and provided, and do not permit the same to be done, unjustly, and against the said custom and the form of the statute aforesaid. Wherefore the said Samuel says he is prejudiced, and hath sustained damages to the value of L 1000, &c.'

The counsel for the defendants, Lewis, demurred to the declaration, upon this ground, that a tenant by the curtesy cannot

Page 2 U.S. 257, 259

maintain the writ of partition; and the demurrer was opposed by Wells.

For the plaintiff, it was admitted, that partition could only be compelled at common law, between parceners; and that the 31 Hen. 8. c. 1. only gives the writ where the party is seized of the inheritance: But, it was contended, that the 32 Hen. 8 c. 32 was designed to give relief in cases not relievable at common law, nor within the provisions of the preceding statute. Thus, in Hargr. Co. Litt. 175. a. b. it is stated, that tenant by the curtesy, though not named in the 32 Hen. 8. is within its equity; and in 3 Bac. Abr. 211. 16 Vin. Abr 233 it is expressly declared, that tenant by the curtesy shall have a rit of partition on that statute. F. N. B. 336 Unless, indeed, he is allowed the benefit of this writ, he has a clear right, without an adequate remedy; for, although he might bring an ejectment, and put himself in possession with the defendants, he could not divide the estate.

For the defendants, it was observed, that their single object in the demurrer was to take the opinion of the Court; as a decision, either way, would be satisfactory to them; and they were, indeed, desirous that a partition should be effected, provided it was done in a legal and valid form, so as to bind the minor daughter of the plaintiff, who is entitled to the reversion. But, it was urged, that in all the books of entries ( which had been laboriously searched for the occasion) not one precedent could be found of a writ of partition, issuing at the suit of a tenant by the curtesy. The common law does not give him that remedy; the statute of the 31 Hen. 8. c. 1, gives it only to, and against, joint tenants, or tenants in common, seized of an estate of inheritance; and though the 32 Hen. 8. c. 32 extends the operation of the preceding statute, by giving the writ of partition to joint tenants, and tenants in common, seized of an estate of inheritance against tenants for life, or years, (embracing, by an equitable construction, the case of tenants by the curtesy, as tenants for life) it does not, e converso, give the writ to tenants for life, or years, nor consequently, constructively, to tenants by the curtesy, as tenants for life. It is true, Lord Coke says, that 'the tenant by the curtesy shall have a writ of partition upon the statute of 32 Hen. 8. c. 32.'; Co. Litt. 175. a. but this general dictum, referring to Bro. lit. 'partition;', 41. is not supported by the case, which was a writ of partition against, and not for, a tenant by the curtesy; the reason assigned for the dictum by the commentator, 'that a proecipe lieth against tenant by the curtesy,' is a good reason, why he should be defendant, but not why he should be plaintiff, in partition; and the dictum is refuted by the plain language of the statute itself as well as by the universal silence of every book,

Page 2 U.S. 257, 260

in which, if such a writ could ever have been maintained, precedents would most certainly have been recorded.

By the Court: Great doubt and difficulty have arisen in this case, from the force of the arguments used by the counsel for the defendants. As, therefore, the object of the plaintiff may be safely and effectually attained by a compromise, in which the defendants declare themselves ready to unite, we wish to avoid an immediate decision of the point of law, that has been agitated.*

Footnotes [Footnote *] On this intimation, the parties entered into an amicable partition by deed, which terminated the controversy.