Cheesman v. Thorne — 1 Edw. Ch. 629

Majority

p. 629

Cheesman vs Thorne and others.

Headnote

A tenant in common of part is not debarred from bringing a bill of partition individually, merely because he is a trustee'as to another part. There can. be a partition or sale notwithstanding other persons may come in esse and be entitled.

May 13, 1833.

A suit in partition. The property had been sold; but the buyers refused to complete their purchases.

It appeared that Samuel Cheesman, the ancestor from whom the title was derived, had devised one third of the estate to his son, the complainant John B. Cheesman, in fee; and the remaining two thirds therof to the said John B. Cheesman and the defendant John W. Messinger, .in trust, as to one of such two thirds, for the use and benefit of fills daughter, the defendant Sarah, the wife of Samuel Thorne, for and during the term of her natural life, with remainders, over of such one third in fee to the children of the said Sarah living at the time of her decease and to the lawful issue of such of them as should then be dead, and the other of such two thirdg (in trust) for the use and benefit of his daughter the defendant Jane, the wife of John Merritt for and during the term of her natural life, with (remainder over of such one third in fee to the children of the said Jane living at the time of her death and to the lawful issue of such of them as should then be dead.

, The objection of the purchasers amounted to this: that John B. Cheesman, having accepted and taken upon himself such trusteeship, was thereby precluded from applying or suing for a partition of such premises in his own name, and that, consequently, a good title could not be conveyed to the purchasers under the]proceedings in thefcause ; and that the rights .and interests in the premises of persons not then in esse, such

p. 630

as the children and grandchildren of the testator’s daughters who might be born thereafter, could not bo partitioned or disposed of by any proceedings at present. There was also a minor objection, namely, that the quantity of land sold to the purchasers was greater in extent than the parties in the cause had any documentary title for.

A motion was now made to compel the purchasers to complete .their purchases.

Mr.12. Bogardus, for the complainant.

Mr. John Beveridge, for the purchasers.

The objections in this case are not raised by any of the parties. They are made by the purchasers only.

1. I do not see that the complainant, John B. Cheesman, is debarrred froto bringing a suit in partition simply because he is a trustee for ^another. He is, in his own right, a tenant in common; and, by staítiíe, both at law and in equity, he has this power. His being -a trustee cannot destroy or affect his individual vested rights. So far, therefore, I think the objections not tenable.

2. Then, as to the rights of persons not in esse. All from whom such after-corners can spring are before the court as parties. In looking at the statute, 1 see that those entitled to the reversion, rema.'nder or inheritance, after the termination 0f any particular estate, are bound by a judgment in partition: 2- R- 8- 322. § 35, and (by the 79 § p. 329,) a decree of this court is equally binding and conclusive. Indeed, if there were no statutory provision, the case of Wills v. Slade, 6 Ves. Jr. 498. would be an authority for a decree in such cases. The court decided there could be a partition although other persons might come in esse and be entitled; the Chancellor observing, that if it were not so, then in every case where there is a settled estate with remainders to persons who may come in esse, there never could be a partition. The limitations

p. 631

over are not affected by a partition or sale. They are protected; and attach to the individual shares which by the decree arc preserved in trust according to the will.

3. There is nothing in the objection as to quantity. It often happens that land over runs the general description of a deed.

The buyers must complete their purchases. Order