78 N.J. Eq. 170 | New York Court of Chancery | 1910
This is a case for partition. The special master reported in favor of a sale in lieu of partition. The defendant Dobbins excepts to the report on behalf of Pauline K. Eadley, an insane tenant in dower of a certain portion of the premises, and which have been duly assigned to her, upon the ground that her estate cannot be partitioned for the benefit of the tenants in common and she be compelled to accept recompense out of the proceeds.
In Smith v. Gaines, 39 N. J. Eq. (12 Stew.) 545, the court of errors and appeals, construing exactly similar provisions of the former Partition act, held that the statutory power applied only to cases where the estate of the tenants in common was in possession. Certainly the tenants in common in this case are not in possession of the tract which has been assigned and set off to the doweress.
In Haulenbeck v. Cronkright, 23 N. J. Eq. (8 C. E. Gr.) 407,
The seizin of a widow to whom land has been assigned as dower is a .continuation of the seizin of her husband and the heir can'not, by entry, obtain seizin in deed; not even if he had entered upon all the lands before assignment, because the assignment, when made, defeats his seizin acquired by entry. Chall. Real Prop. *187.
When dower is assigned the estate of the doweress becomes paramount, and it is upon this that encumbrancers, whose liens were created subsequent to the marriage, are postponed to the estate and interest of the tenant in dower.
Neither the Partition act authorizing the sale of a life estate nor the provision for the sale free from dower in the act concerning the sale of land (Gen. Stat. p. 2983 § 18) empowers the court to order the sale of a life estate, which, in severalty, is in the actual use and enjoyment of the life tenant, without that tenant’s consent. See Bouvier v. Baltimore and New York Railway Co., 67 N. J. Law (33 Vr.) 281 (at p. 295).
A life estate may be involuntarily sold away from the life tenant only when it exists as an interest in lands, the remainder of which is in others who are entitled to possession in some form, either with the life tenant or exclusive of him or in conjunction with him.
The exception must be sustained.