By section 1533 of the Code, authority was conferred to maintain partition in a case where two or more persons held as joint tenants or as tenants in common an estate in remainder, according to their respective shares therein, subject to the interest of the person holding the particular estate. But no sale of the premises could be had except with the consent of the person holding the particular estate. The language of this section seems to limit the right of remainder-men to partition among themselves, where they appear as owners of the property, subject to the life estate. This construction is borne out by the provisions of section 1532, where partition is authorized between persons holding and in possession as joint tenants or as tenants in common, in which either of them has an estate, etc., according to the respective rights of the persons interested therein. . This is the general power conferred to partition, and extends the authority to the persons named, according to their rights and interest. The authority conferred upon the remainder-man by the next section is limited, and relates to their respective shares therein. There is a distinct limitation in this language; for if it was intended that remainder-men could institute an action of partition among themselves, and against tenants in fee, then there would have existed no reason for a change in phraseology, or, for that matter, for conferring upon them separate authority, as they could have been embraced in the first section as easily as to point out their particular right in a second. And this is further made clear by section 1533, read in connection with section 1538. By the former, the remainder-man is limited in his right to maintain partition, unless he or his co-owners own the whole property subject to the life estate. The express provision of the latter section is: “No person other than a joint tenant, or a tenant in common of the property, shall be a plaintiff in the action.” In the present case the plaintiff does not answer this requirement, as he is neither a joint tenant nor a tenant in common, and is not in possession, either actual or constructive. Sullivan v. Sullivan, supra. It is quite clear that, by the adoption of these sections of the Code, it was not thereby intended to change the rule relating to the rights of remainder-men to maintain partition, beyond the express authority conferred. In the main, the object was to allow partition in a case where the holder of the life estate or other tenancy consented to a sale of the premises; and, while the rule is extended somewhat beyond this, it is clear that it should be held within the prescribed limits. It is as evident now as before the Code that any actual partition of the interests in remainder, even though equal when the partition was made, may become greatly unequal at the time of the devolution of the estate, in consequence of which partition should not be allowed, except in a case coming fairly within the terms of the Code. Such is not the present case. If, however, the action could be maintained, we are of opinion that actual, partition of the property could not be made without prejudice to the rights of the respective owners; and, as the life tenant does not consent to a sale, there can be no partition.
The judgment dismissing the complaint was right, and should be affirmed, with costs. All concur.