115 F. 226 | U.S. Circuit Court for the District of Eastern North Carolina | 1902
(after stating the facts as above). This court has no right to inquire whether the circuit court of appeals erred in any particular, nor can it sit in review of that court. The petitioners could have prayed a rehearing, or could have invited the review by the supreme court. No inferior tribunal can afford them relief. It follows, therefore, that so much of the prayer of the petition as asks that the decree be amended cannot >be entertained.
The decree of the court below, in a cause to which the East Coast Cedar Company was a party, after a full hearing, determined that the partition prayed for by that company could not be made in severalty, and could only be effected by a sale. To that decree John C. Stickney, the supposed life tenant, was not a party, and was not bound by it. Martin, the present petitioner, after the decree was made, purchased Stickney’s interest. He was not bound by the decree. But having this immunity, he, of his own accord, intervened in the cause on appeal, took part therein with the appellants, was represented by counsel, and all points which he then .contended for and now insists on were presented. The one question before the court was, could this partition be effectually made In severalty, or must it be made by a sale and the allotment of shares in money ? On the one side were tenants holding 82 per cent, of the interest in the lands, and on the other side were the shares of the Phenix National Bank and Mary H. Brown, which, during the litigation, had been purchased by the East Coast Cedar Company, and a share of one-fifteenth in the land, the fee in which, was in the East -Coast Cedar Company in remainder, subject to the life estate of Stickney so purchased by Martin. The contention between these two sides was heard by the appellate court, and it decreed that a partition could only be made by a sale. Intervening as Martin did in the cause, he submitted himself to the jurisdiction of the court (President, etc., v. Merritt [C. C.] 59 Fed. 6), and is bound by its decision. He
“Sec. 3. In all proceedings for partition of land whereon there is a life estate, the life tenant may join in the petition or proceeding and on a sale the interest on the value of the share of the life tenant shall be received and paid to such life tenant annually, or in lieu of such annual interest the value of such share during the probable life of such life tenant shall be ascertained and paid out of the proceeds to such life tenant absolutely.”
The petitioner, of his own volition, has joined in the proceedings for partition. It is true that he did so for the purpose and with the hope of setting aside the decree of the circuit court, not only as it affected his own interest, but also as it affected the interest of his ally, the East Coast Cedar Company. But, having joined in the proceedings, he necessarily took the consequences. So, in the further proceedings ordered by the appellate court, the circuit court can provide ample protection for the petitioner, and give him all that the state statute has given to life tenants in the same circumstances.
The petition is dismissed.