Cook v. Webb

• Decision Date: 01 January 1874
• Citation: 19 Minn. 129
• Parties: JOHN B. COOK v. ISAAC W. WEBB, impleaded, etc.
• Court: Minnesota Supreme Court

19 Minn. 129

JOHN B. COOKv.

ISAAC W. WEBB, impleaded, etc.

Supreme Court of Minnesota.

Appeal by defendant, Webb, from a judgment of the district court, Ramsey county.

Lampreys, for appellant.

Geo. L. Otis, for respondent.

COPYRIGHT MATERIAL OMITTED

McMILLAN, J.

This is an action by the plaintiff under chapter 74 of the General Statutes for partition of certain premises described in the complaint. The action was commenced on the thirty-first of January, 1871, and was tried by the court, and resulted in a finding for the plaintiff on all the issues raised in the pleadings, and a judgment for partition of the premises. No case was made or bill of exceptions settled; it must, therefore, be presumed that the findings of fact by the court were all correct and all sustained by the evidence. The case must then be determined upon the pleadings, the findings of the court, and the judgment. The defendant, Isaac W. Webb, is the only appellant. For the purpose of determining the question raised, a summary statement of the facts will answer all the purposes of the case.

It appears from the findings of the court, that John B. Cook, the plaintiff, and the heirs of Stephen R. Champlin, deceased, viz., the defendants Elizabeth M. Champlin and Sophia J. Champlin are the owners in fee, as tenants in common, of the entire premises of which partition is demanded; the said Cook owning one undivided half thereof, and the heirs of said Champlin owning the other undivided half thereof, the estate of said heirs being subject to the dower estate therein of the defendant E. Sophia Champlin, the widow of said Stephen R. Champlin, deceased; that the defendant, Webb, has an estate for years in the undivided half of the premises under a lease of October 31, 1870, from the widow and heirs of said Champlin of their interest in the premises. It also appears that at the commencement of the action the defendant, Webb, had an estate for years in a several portion of the premises, to-wit, the north 100 feet of the east 50 feet of lot 5, in block 30, in St. Paul proper, under a lease dated February 3, 1866, from the grantors of the plaintiff, Cook, and Stephen R. Champlin, deceased, the ancestor of the Champlin heirs, and that Webb was in actual possession of the said leased premises, at a certain agreed annual rent, payable to the plaintiff, and the Champlin estate, owners in fee, as tenants in common, of the premises; that the lease last mentioned by its terms expired on the first day of April, 1871; that the cause was tried on the twenty-fourth of August, 1871, and judgment of partition entered February 28, 1872. No question of title arising out of adverse possession is presented in the case, since Webb's possession by virtue of the lease was under Cook and the Champlin heirs as owners in fee of the premises.

Upon this state of facts the principal question presented is, whether or not, when lands, leased for a term of years, and in the actual possession of the lessee, are owned by several persons as tenants in common both of the rents and of the reversion upon such estate for years, an action for partition can be sustained by one of such owners and tenants in common. This must be determined upon the provisions of the statute under which the action is instituted. The statute of our state contains no express provision requiring the party applying for the partition of lands to be in actual possession of the premises of which partition is sought to be made, as to have the right to such actual possession, nor does it in terms prohibit reversioners or remainder-men from having such partition. It differs in these respects from the statutes of several of the states of the Union.

The first section of our statute is as follows: "When two or more persons are interested in real property, as joint tenants, or as tenants in common, in which one or more of them have an estate or inheritance, or for life or years, an action may be brought by one or more of such persons against the others, in the district court of the proper county for a partition thereof, according to the respective rights and interests of the persons interested therein, or a sale of such property, or a part of it, if it appears that partition cannot be had without great prejudice to the owner." Gen. St. c. 74, § 1, p. 533.

Under the statute one who has an estate of inheritance, or for life or years, in real property as a joint tenant, or tenant in common with others, who are made defendants, may maintain this action. There is nothing in the section from which it can be implied that actual possession of the premises, or a right to such possession, is necessary; on the contrary, we think, it appears by necessary implication that neither actual possession nor the right to actual possession is necessary. Section 8 prescribes that the judgment is binding and conclusive: "First. On all the parties named therein, and their legal representatives who have at the time any interest in the property divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder, or inheritance of...