Parks v. . Siler

PeaRSON, C. J.

Tbe petition was for tbe sale of land for ffhe purpose of partition. Tbe defendants object to a sale ifor partition, on tbe ground that tbe defendant Siler is tenant iby ¡the curtesy in one undivided moiety of tbe land ; but do mat ^object to an actual partition so that eaeb moiety may be Ibeld in severalty.

His Honor was of opinion that tbe plaintiff bad no right uto an order of sale and dismissed tbe proceeding. We concern’ in this opinion. At the common law “ coparceners” anight compel partition by original writ, when tbe parceners were seized of tbe land and the one was a good "tenant to tfche praecipe”; but if a freehold estate intervened as an estate '.by curtesy or other life estate, tbe writ did not lie because •¡there could be no tenant of tbe praecipe In the case of «dower a partition could be made subject to tbe widow’s ,right, he'r dower being first assigned by metes and bounds ¡and the partition bad with respect thereto.

Joint tenants and tenants in common could not compel partition except by statute which authorizes tbe Court to •compel partition in like manner as between coparceners.

It was afterwards provided by statute that tbe Court •¡might order a sale for tbe purpose of partition, instead of an ¿actual partition, when tbe interest of tbe parties would be promoted thereby. And it is provided that a widow entitled to dower may join in tbe application and receive her •{third in money or a corresponding part absolutely, in lieu of .-a life estate. This leaves tbe election to tbe widow, whether -•to enjoy her dower specifically by metes and bounds as a ¡home or to take compensation in money.

In regard to a tenant by the curtesy or to one entitled to ra homestead, there is no statutory provision for the plain ¡•reason that it was presumed that persons entitled to these «estates would prefer to have “a house and home,” and would mot elect to take compensation in money. Eor instance, one «entitled to a life estate as tenant by the curtesy or as a home stead could hardly be supposed to be willing to let his. estate be sold and take compensation in its money, value. Leave your house and home and take the interest on $1,000 during life, is a proposition that would be rejected by every tenant by the curtesy and by every person entitled to a homestead.

' The question is,-ean the Court compel them to agree to a-■sale? The Court had no such power at common law and there is no statute which confers it.

There is no error.

Per Curiam. Judgment affirmed»