Stevenson v. Bachrach

Mr. Justice Magruder

delivered the opinion of the court:

When this bill for partition was filed, the premises were owned in severalty in the proportions of 10.6 feet thereof by the appellee and of 9.5 feet thereof by the appellants. It is a fact, and the appellee so admits in his testimony, that he only owns the land, 10.6 feet wide, described in his deed from Dawson, and that he only claims what is described in that deed and as it is therein described. So far as the building is concerned, it must be held that that portion of the building, which rests upon the portion of the land owned by appellee, belongs in severalty to him, and that portion of the building, which rests upon the land belonging to appellants, belongs in severalty to them, in the absence of any testimony as to the nature of the arrangement between the original owners, who erected the building. “The grant of a tract of land passes everything standing upon the land. * * * A deed to land conveys the buildings thereon. Evidence of the intention of the grantor is inadmissible.” (2 Devlin on Deeds, sec. 863). By the delivery of the deed, which was executed by Dawson to appellee, the grantor therein conveyed to appellee, not only the land, but the portion of the building upon the land. “Gujus est solum, ejus est usque ad ccelum.” Lord Coke says, that the word, “land,” in its legal signification, comprehends any ground, soil, or earth whatever, and it also has an indefinite extent upwards as well as downward; and that, therefore, it includes all castles, houses and other buildings standing thereon. (Isham v. Morgan, 9 Conn. 374.) It is also true, that, by the delivery to Worrell of the deed which conveyed to him his land, the portion of the building resting thereon passed with the land. But it cannot be said, that, by the deed which was executed to appellee and by the deed which was executed to Worrell, any building, or any portion of any building not standing upon the particular premises conveyed by these deeds respectively, passed thereby to the grantees therein. It follows, that appellee acquired no interest by his deed in the portion of the building which rested upon Worrell’s land, and Worrell by his deed acquired no interest in the portion of the building which rested upon the land of appellee. The portions of the land, upon which the building stood, were not only owned in severalty by the parties, but the portions of the building, resting respectively upon the portions of the "land owned in severalty, were also owned in severalty. We are unable to understand how it can be contended, under these facts, that the appellee and the appellants owned the building in common, or were tenants in common thereof.

In the case at bar, therefore, an attempt is made by the appellee, the complainant below, to accomplish the partition, by an involuntary proceeding, of property owned in severalty. This cannot be done under the Partition act of this State, and under the construction, which has been given by this court to that act. Section 1 of the Partition act provides, “that when land, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary, * * * any one or more of the persons interested therein may compel a partition thereof by bill in chancery,” etc. (3 Starr & Cur. Stat.—2d ed.— p. 2912). In McConnel v. Kibbe, 43 Ill. 12, we held that an estate must be held jointly, in common, or in co-parcenary, in order to be the subject of partition under our statute; and that premises, belonging in severalty to two, and no portion thereof belonging jointly to both, are not subject to partition under our statute, or under any proceeding known in courts' of equity.

We are, therefore, of the opinion, that such a bill for partition, as has been filed in this case, will not lie, and that the court below erred in entering the decree for partition. Accordingly, the decree "of the circuit court is reversed, and the cause is remanded to that court with directions to dismiss the bill.

Reversed and remanded.