Wotten v. Copeland — 7 Johns. Ch. 140

Majority

p. 140

Wotten and Wife against Copeland and others.

Headnote

The owners of the equity of redemption, as well as tenants in common, for life or for years, may have partition of their interest, as between themselves.

But mortgage and judgment creditors cannot be compelled to join with them in a bill for a partition; nor can any relief be prayed against them; nor can their rights, in any degree, be affected by the partition.

BILL for a partition, stating, that George Copeland died seised of three houses and lots in the city of Neto

p. 141

York, and left five heirs, of whom the wife of the plaintiff, Wotten, was one, .and the first four defendants were the other heirs. The bill stated, that all the lots were incumbered by mortgages and judgments; and the mortgage and judgment creditors were made defendants. The prayer of the bill was, for a partition or sale of the lots, and that the incumbrances he paid out of the proceeds. The creditors answered.

Boyd, for the JSagle Fire Insurance Company, mortgagees of G. C., insisted, that the plaintiffs were not entitled to any decree affecting them, except to redeem, which was not asked.

The other defendants did not appear at the hearing.

II. Bleecher, for the plaintiffs.

The plaintiffs are entitled to a partition, as to the equity of redemption merely. The mortgage and judgment creditors have no concern with the partition; and their rights cannot be affected by it. A sale of the entire legal and equitable estate could not be effected in this way. Tenants in common of an interest less than a fee, even of an interest in a lease for years, may have partition of such minor interest, as between themselves. But the mortgagees and judgment creditors cannot be compelled to join in the partition. No relief can be prayed against them, and their rights cannot be affected by the partition. (Baring v. Nash, 1 Ves. and Bea. 551.)

The bill, as to them, must be dismissed, with costs.

As to the heirs, a partition may be had, and let a commission issue accordingly.