delivered the opinion of the court:
It is first insisted that the court erred in overruling appellants’ demurrer to the bill. They having answered over, аre not in a position now to raise that question. The answer, however, set up.substantially the sаme matter as was presented by the special demurrer, and the action of the cоurt in sustaining exceptions thereto preserves all the rights appellants would have had undеr the demurrer.
Appellants assign for error the sustaining of the exceptions to their answer. Section 1 of chapter 106 of the Revised Statutes provides: “That when land, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein mаy compel a partition thereof by bill in chancery as heretofore, or by petitiоn in the circuit court of the proper county.” Under this section we have held that where a. case is fairly brought within the law authorizing a partition, the right to partition is imperative and absolutely binding upon courts of equity. They are not clothed with such discretion as that under a given state of facts they may grant the relief or refuse it and yet commit no error. To invoke the equitable- remedy is a matter of right, and not of mere grace. (Hill v. Reno,
The contention of appellants that the former рroceeding having been instituted in which the parties interested in the land had the right to have it partitioned or sold in the same manner as is sought by the present bill, the presumption must be that the right to partition was then waived or decided adversely to the right, and that therefore no further prоceeding can be had by others interested in the land to have the same divided until the expirаtion of the life estate, is, in our opinion, wholly untenable. The presumption must be that the court in the former proceeding acted from legal and proper motives under the then existing conditions and rights of the parties. Why the fee to the eighty-acre tract was not then. divided dоes not appear nor is it material. The rights of infants may have intervened, which made it to their interest that the same should not be then divided, and if so, there would seem to be no reason for holding that any one of them, upon arriving at his or her majority, might not have partition subject to thе life estate of their mother, or, as is the case here, having sold their interests, their granteеs may undoubtedly apply, under the statute, to have the lands divided. We do not see why the owners of the fee would be entitled to partition- after the expiration of the life estate rather than before. If a prior action is a bar in the one case it would be in the other, in the absence of any statutory limitation. We have no hesitancy in holding that the former partitiоn proceeding was in no sense a bar to this action, and that the court below proрerly so held.
Objection is also urged that the commissioners did not set off to the appellants their shares of the land as requested in their answer, and to the order of sale. The commissiоners having found that the land was not susceptible of division without manifest prejudice to the pаrties interested, and so reported, the order of sale followed as a matter of course, under the statute. If appellants desired to raise the question that the commissionеrs were not justified in finding that the premises could not be divided, they should have, made an objection to their report to that effect and offered evidence in support of their objection. Without such objection and proof we are not authorized to find that their action, and that of the court, was not authorized by the facts in the case.
The proceeding in the circuit court, as shown by this record, was in conformity with the law and facts of the case, and its decree will be affirmed.
Decree affirmed.