Sullivan v. Sullivan

plaintiff cannot maintain such action, was distinctly taken by the answer, and is determined by the judgment. This question, from the examination I have been able to give to it, does not seem to have been decided by the court of last resort in this State, nor have the decisions of this court upon the question been entirely uniform.

This question is very ably discussed, and the cases claimed to have a bearing upon it are reviewed and criticized, in Blakeley v. Calder,^[10] by Judge Denio. The conclusion reached by him is, that all those cases were decided upon questions other than the one involved in the case of Blakeley v. Calder, except the case of Brownell v. Brownell;^[11] and the decision in the latter case is not a correct exposition of the law upon this question, if it was really involved in the latter case.

. This court had held in the case of Blakeley v. Calder,^[12] that a remainderman, though not in actual possession of premises, might maintain an action for their partition. This case was taken to the Court of Appeals, and Judge Bowen, in that court, delivered an opinion affirming the judgment of this court, at General Term — that the purchaser at partition sale of the premises be compelled to complete the purchase, upon another ground than the right of the remainderman to maintain the action. Judge Denio also wrote the opinion in the case above referred to, in favor of affirmance, upon the ground that the owner of a vested remainder, though not in actual possession, could maintain an action for partition; and the opinion of Judge Denio was concurred in by three other (and perhaps not the least able) judges of that court. The next reported case, involving this question, is Howell v. Mills.^[13] That case distinctly held that a remainderman, not in the actual possession, could maintain the action.

I do not think the court, in. the case under consideration, would be warranted in disregarding the current of decision upon this question, even if its members entertained views not altogether in harmony with the cases cited.

The decisions upon the subject since Brownell v. Brownell,^[5] concur, that an actual or present possession is not necessary to maintain the action, but that the language of the statute,^[6] “ when

several persons shall hold and be in possession,” is satisfied, though the remainderman be not in the actual possession. It may be remarked that the legislature took this view, in enacting section 448 of the Code, and in making the provisions of the Eevised Statutes applicable to the action of partition; for the language of that section is: “When lands, etc., are held or possessed by joint tenants or tenants in common.”

But, it is insisted in this case that, however it may be held as to the right of one of several remaindermen, who are not in the actual possession, to maintain the action of partition, a sole remainderman cannot maintain the action. In other words, that the plaintiff must be a joint tenant or tenant in common, in order to maintain partition ; the plaintiff in this case, having no tenant in common, cannot maintain the action. It is argued that the plaintiff is not a tenant in common because there is no unity of possession between her and any other owner. This argument is based upon the necessity of an actual possession. But is actual possession necessary to constitute a tenancy in common ? We have seen that actual possession is not required under a statute giving the right to this action to persons in possession. Constructive possession answers the requirement of that statute. May not constructive possession equally well answer the requirement of the definition of a tenancy in common? A tenant in common, as defined in Washburn’s Beal Property,^[10] “is where two or more persons hold possession of lands and tenements, at the same time, by several and distinct titles.” The quantities of their estate may be different, the shares may be unequal; the modes of acquisition of title may be unlike; and the only unity between them be that of possession. “ There may be a tenancy in common among several owners of a remainder,”^[11] yet neither of the remaindermen is in actual possession.

Possession of premises so as to allow the bringing of an action of partition, is presumed from the allegation in the complaint, that the parties are seized as tenants in common.^[12] The seizin of one tenant in common who admits, or does not deny, the title of his

cotenant, may be considered as the seizin of all the tenants.^[10] Where there is no visible adverse possession, the entry of one cotenant is deemed a possession and seizin of.all, according to their titles.^[11] Possession of one tenant in common is the possession of all.^[12] Hence, I conclude that constructive possession is sufficient to constitute the unity of the right of possession required in a tenancy in common.^[13] It is also, urged that a power in a remainderman, having no right of actual possession till a remote future, to compel a partition or sale of lands in the actual occupation of other owners who prefer and whose interest it is to continue that occupation during the period that they are entitled to the actual occupation, may be inopportunely or oppressively exercised.

These are the conditions and incidents which appertain to this species of ownership of real estate, and cannot become legitimate subjects for the consideration of the court in the present stage of this case.

The judgment should be affirmed, costs of the parties to this appeal to be paid out of proceeds of sale, as provided in the judgment.

Present — Learned, P. J., Boardman and Potter, JJ.

Learned, P. J., dissented.

Judgment affirmed, costs to be paid out of proceeds of sale.