Zimmermann v. Rapp

20 Wend. 100 | N.Y. Sup. Ct. | 1838

By the Courtr Nelson C. J.

The only question in the case material to notice is, whether the plaintiff is bound by the proceedings in partition, her husband alone being a party thereto. He was tenant by the curtesy initiate, and at most had but an interest for life in the premises, and upon general principles could do nothing to the prejudice of the estate of the reversioner. The partition may have been valid to the extent of his interest, or during his lifetime, but beyond that period the proceedings are clearly nugatory, unless there is something in the statute specially affecting the interest of the wife.

The proceedings were instituted under the 15th section of the act of 1785, which provides that application for partition may be made by one or more of the owners or proprietors of the premises, and in case of sale, on the ground that partition would be prejudicial, conveyances are tobemade to the purchasers, <c which shall operate as an effectual bar both in law and equity against such owners, or proprietorsSec. By the terms owners or proprietors, I am inclined to think the legislature intended to designate the persons holding the fee ; but whether so or not, cannot be material in this case, for it is clear, the effect of the conveyance here declared, does not extend beyond the interest of the applicant, whatever that may be. If the words include a tenant for life, his estate only is bound, not that of the remainder-man or reversioner. In 1788, an act passed expressly authorizing partition between owners in common holding for life or years, and between them and persons having an estate of inheritance $ but it provided that such partition should not be prejudicial to any person or persons other than the parties, their executors and assigns. This statute was taken from the 32 H. 8 c. 32, under which it has been held that a tenant by the curtesy within the equity of it, might have a writ of partition, though neither joint tenant, nor tenant in common, as he is in equal mischief with any other tenant for life: but such partition is temporary only, as well from the saving clause, as upon general principles. To make the partition absolute, there must be another writ against the remainderman or reversioner, as soon as his estate falls into possession. Allinant on Part. 59, 63, 64. Co. Litt. 175. Litt. R. 300. 2 Cruise, 534, § 38. 1 Co. Litt. 699. 1 Ves. & Beame, 555. The authorities are also full, that the wife must be made a party to the proceedings in order to bind her interest. 1 Co. Litt. 819. Allinant, 64. Co. Litt. 71, a. 1 Atk. 541.

New trial denied.