150 Ga. 495 | Ga. | 1920
(After stating the foregoing facts.) At common law only parceners had the right of partition. By the statute of 31 Henry VIII, c. 1, this remedy was extended to joint tenants and tenants in common of any estate of inheritance in their own right, or in the right of their wives. By the statute of 32 Henry VIII, c. 32, the remedy was still further extended to joint tenants and tenants in common, for term of life or years, or joint tenants and tenants in common, where one or some of them have estate for term of life or years, with the others that have an estate of inheritance or freehold. Allnatt on Partition, 56. Similar statutes have been enacted in most of the American States. Hnder these statutes it is generally held that a tenant for years or for life may compel partition between himself and his cotenants. See Nichols v. Nichols, 28 Vt. 228 (67 Am. D. 699, and note); Plano Manufacturing Co. v. Kindschi, 131 Wis. 590 111 N. W.
The ruling here made is not in conflict with the ruling in Cock v. Lipsey, 148 Ga. 322 (6 a, b), 325 (96 S. E. 628). The will of the testator there considered authorized and contemplated a division in kind by and between life-tenants. The will was the law of the case, and a fair division of the land made by the life-tenants, as authorized by the will, was binding upon the remainder-men, although the remaindermen were minors at the time of the division, and were not otherwise parties thereto.
Judgment affirmed.