Appeal of McCandless

Mr. Justice Mercur

delivered the opinion of the court,

Neither a judgment nor a mortgage lien against one tenant in common prevents a partition, either at his instance or at that of any other of the tenants. Bavington v. Clarke, 2 P. & W. 115. The mortgagee of an interest in an undivided estate, is not entitled to be made a party to a proceeding in partition : Long’s Appeal, 27 P. F. Smith, 151. He has an incumbrance only on the land : but no estate in it. He has no right whereby he can elect to take or to refuse a purpart, nor can lie give security for owelty: Id. The primary object of partition is to divide the land among the tenants according to their respective shares therein. If such a partition is not practicable without prejudice to the whole, then only, should it be partitioned into purparts of unequal value. In case of a lien on the interest of a co-tenant to whom a purpart is allotted in severalty, the lien follows the separation and attaches only to the estate so taken, but is discharged as to the other purparts: Jackson v. Pierce, 10 Johns. 414; Bavington v. Clarke, supra; Long’s Appeal, supra; Wright v. Vickers’ Adm’r, 31 P. F. Smith 122.

The rights of tenauts in common to make partition and to enjoy all the incidents connected therewith, are paramount to the rights of a lien creditor against any one of the tenants. If necessary to effect the legitimate purpose of partition, such a lien must yield some of its former binding force, and may even be wholly divested. Hence, notwithstanding the Act of 23d March 1867 declares that the lien of a first mortgage shall not be destroyed or in any way affected “ by any judicial or other sale whatsoever,” yet where after the commencement of proceedings in partition one of the co-tenants executed a first mortgage on his undivided interest, and the proceedings in partition resulted in a sale by the sheriff, it was held that the lien of the mortgage was thereby divested: Wright v. Vickers’ Adm’r, supra. The case was not ruled on the ground that the mortgage was executed during the pendency of the proceedings in partition; but on the broader ground of the paramount rights of tenants in common to make partition and to enjoy all the incidents • flowing therefrom. Section 38 of the Act of 29th March 1832, Pur. Big. 436, pi. 150, provides in case equal partition in value cannot be made, and the court orders the purparts to those entitled thereto, it shall award them “subject to the payment of such sum or sums of money as shall be necessary to equalize the value of said purparts according to the said appraisement thereof.” The purpart of which the proceeds are now in contention, was so allotted “ subject to the payment as owelty in partition” of sums sufficient to equalize the valuation. The lien of the recognizance- then attached to the whole estate thus taken : Long v. Long, 1 Watts 265; Cubbage v. Nesmith, 3 Id. 314.

Liens for owelty of partition in the Orphans Court in several respects stand on a different footing from liens of judgments in the Common Pleas. The former are in the line of title, and must be looked for in the proceedings of partition; liens in the latter court are outside of the line of title. A judgment docket is required to be kept in the Common Pleas for the information of subsequent lien creditors’ and purchasers. None is required in the Orphans’ Court. To ascertain in regard to a lien there, the proceedings in partition must be examined: Riddle & Pennock’s Appeal, 1 Wright 177.

A purpart taken in severalty is allotted as an entirety. Whether the tenant’s previous interest in the whole was large or small it matters not when he takes a purpart charged with owelty. He takes it as a whole. The recognizance to secure-the payment thereof- attaches to the whole. Why shall it not become the first lien thereon ? A co-tenant for whoso benefit the recognizance is taken, may be divested of his whole estate in all the land partitioned. His only security for payment is the recognizance. There is no line of separation or division running through a purpart by which it can be divided to apportion liens.

Presumably, the tenant thus taking acquires an estate in land of a value as much greater than his previous estate, as the amount of the owelty is, charged thereon. Hence, although a previous lien on an undivided interest may, in form, be displaced by the lien of the owelty in partition, yet the effect is more imaginary than real. It will practically bind land of a value equal to that on which it was a lien before partition. The partition has added to the value of the estate of the tenant a sum equal to the amount of the owelty charged thereon.

Conceding, however, that a second lien is not as desirable as a first one, yet when a person obtains a lien against the estate of a tenant in common, he assumes that risk. He knows the estate is subject to partition and all its incidents. He cannot impair any of the rights of the co-tenants. Their rights are superior to the rights of a lien creditor of one tenant. Such a lien will not deprive them of any right incident to a partition, that they might otherwise have enjoyed.

The case of Randell v. Mallett, 14 Maine 51, is not applicable to tbe present ease. That was not a partition subject to oweltycharged on a purpart. The lien there in contention was not in the line of the title; but merely an incumbrance on the land. It was therefore correctly held that it was not in the power of the mortgagor, by a sale of part of the land, and subsequent partition, to extinguish the lien on the parts sold, without the consent of the mortgagees. We have thus considered the only question urged on the argument, and discover no error in the record.

Decree affirmed, and appeal dismissed at the costs of the appellant.