No. 1823 | S.C. | Feb 26, 1886
Opinion by
A and B, tenants in common, executed a mortgage upon their land in 1882 to secure a debt, payable in four annual instalments. Afterwards A conveyed his interest in the land to another, and B also conveyed one moiety of his interest, and then died intestate in February, 1883. The widow and six children of B instituted this action for partition in 1885, making parties defendant the administrator of B, who was in possession, the other tenants in common, and the mortgagee. On oral demurrer the Circuit Judge (Aldrich) ruled that the complaint did not state facts sufficient to constitute a cause of action, inasmuch as the action was prematurely brought. Held—
That upon the death of B his title' and interest descended eo instanti to the plaintiffs, who could therefore demand partition {Gen. Stat., §1829), not of grace, but of common right; that difficulty in effecting partition does not bar the right; that the right exists even where there are outstanding debts or liens upon the property, for the satisfaction of which provision may be made in the decree ; and that if prematurely instituted, the proper practice is to suspend' the proceedings, but not to dismiss.