Jаmes D. Roy in 1913 recovered a judgment against Adolph Abraham. A certificate of it was duly recorded in the probate office of Montgomery county in that year. Adolрh Abraham, Joseph Zadek, Isa-dore Zadek, and Rosa Sacks own jointly [one-fourth each] a house and lot in Montgomery. Adolph Abraham in April, 1919, was adjudicated a bankrupt, and was discharged. He did not schedule his interest in this house and lot. In Juno, 1921, after his discharge, he filed petition in the court, averred failure to schedule the property, asked that it be done, and that it be set apart to and allowed him as* a homestead, exempt from the payment of debts, and that he was then in possession of it. The house and lot were by the court allowed him as a homestead, exempt from the payment of debts.
This bill is filed by James D. Roy against Adolph Abraham and the three other оwners of the house and lot to collect the judg *401 ment through his lien on Abraham’s one-í'ourth interest, hy selling the entire property for division among all the joint owners, becausе it cannot he equitably partitioned among them; and to have one-fourth of the proceeds, Abraham’s part, applied on the judgment, and the balance, if аny, paid to him, and to have the residue (the other three-fourths) of the proceeds divided among tile other joint owners according to their interests and rights. Abraham demurrеd to the bill, and the other defendants moved to dismiss the hill as to them. The demurrers of Abraham were sustained, and the motion to dismiss by the -other defendants was granted by the court. Jamеs D. Roy appeals from and assigns this decree as error.
James D. Roy is the sole party complainant. Under the averments of the bill his only interest in the property is a judgment lien on the one-fourth interest of Adolph Abraham.
Section 5231, Code 1907, reads:
“The chancery court shall have jurisdiction to divide or partition, or sell for partition, any property, real or personal, held hy joint owners or tenants in common, whether the defendant denies title of the complainant or sets up adverse possession or not.”
“It is required of the complainants, however, that they should show a clear title to an undivided interest in the lands sought to be partitioned.”
In Berry v. T. & C. I. & R. R. Co.,
“Indeed it is required of complainant that it should show a clear title to an undivided interest in the lands sought to be partitioned.”
In Brown v. Feagin,
“The right of partition, or sale for distribution, is a right which from its very nature exists only in favor of and against tenants in common, and the equity of the bill filed for either purpose is founded on the community of title or interest in the several parties complainant and defendant.”
In Shepard v. Mt. Vernon Lbr. Co.,
“A cotenancy is an indispensable element of every compulsory sale for division under our statutes; and that, if there is no cotenancy, there is no right to a sale for divisiоn.”
In Arnett v. Bailey,
“The bill, however, prays for partition of the lands * * * for that purpose, the court of chancery has jurisdiction, if the complainant has averred a clear title to an undivided interest in the lands.”
In Kelly v. Deegan,
“The essential, controlling element of the jurisdiction is, that the lands ‘cannot be equitably divided or partitioned’ among the tenants. =:• * * When this fact еxists, a sale at the instance of either tenant is matter of right, as actual partition at common law was matter of right, without inquiring whether it is of benefit or injury to the other tenants.”
. The complainant must aver and prove that he is a joint owner or tenant in common of the real estate to give the court jurisdiction under the statute to compel by decree a sale of it for division on the ground it cannot be equitably partitioned. The right to compel a sale of real estate for division, because it cannot be equitably partitioned, is given to either of the joint owners or to either of the tenants in common of the real estate. If the sole complаinant is neither a joint owner nor a tenant in common of the real estate, ■ then the court on his application has no jurisdiction to divide or partition or to sell for partition the property. The respondents each own, under the averments of the bill, an undivided one-fourth interest in the real estate, and are in possessiоn of it. The complainant owns under the bill a judgment lien on the undivided one-fourth interest of Adolph Abraham, one of the defendants, in the real estate. Is the complainаnt a joint owner or tenant in common with the respondents in this real estate? In Bell v. Getter, Weil & Co.,
“Now, it is not understood that a general lien by judgment on land constitutes, per se, a right in the land itself. * * * In short, a judgment creditor has no jus in re, but a mere power to make his general lien effectual, by following up the steps of the law, and consummating his judgment by an еxecution and levy on the land. * * * The. only remedy of the judgment creditor is against the thing itself, by making that a specific title which was before a general lien.”
In Perkins v. Brierfield Iron & Coal Co.,
“An execution .liеn on land constitutes no property or-right in the land itself. * * * A judgment creditor has no jus in re, but • a mere power to make his general lien effectual' by following up the steps of the law.”
These principles are fully sustained by the general line of authorities in nearly all of *402 tlie states, cited in 23 Cyc., Lien of Judgments, p. 1350, A, headnote 1, and in 15 R. C. L., Judgments, art. 254, p. 797, heаdnotes 19, 20, and 1.
In Phelps v. Palmer,
“A judgment creditor who has levied his execution on real estate held by his debtor in common with third persons cannot petition for partition of the estatе till after the expiration of the year within which the debtor may redeem.” To the same effect see Newton Bank v. Hull, 10 Allen (Mass.) 144; Ewer v. Hobbs, 5 Metc. (Mass.) 6.
We find no error in the record. The decree is affirmed.
Affirmed.