Knight v. Knight

• Decision Date: 06 June 1914
• Citation: 89 A. 595,10 Del.Ch. 304
• Court: Court of Chancery of Delaware
• Parties: GEORGE P. KNIGHT, v. WILLIAM K. KNIGHT

89 A. 595

10 Del.Ch. 304

GEORGE P. KNIGHT, v. WILLIAM K. KNIGHT

Court of Chancery of Delaware, Kent

June 6, 1914

Petition by George P. Knight against William K. Knight for partition. Heard on petition and answer.

The facts are stated in the opinion.

Petitioner's right to a partition depends denied by the answer of the respondent.

Arley B. Magee, for the petitioner.

Henry Ridgely, for the respondent.

OPINION

THE CHANCELLOR

The petitioner alleged a tenancy in common with the respondent of a tract of land containing about nineteen acres in Kent county, created under the residuary clause of the will of Elizabeth J. Knight, and a copy of her will is made a part of the petition. By the will, after disposing of certain property, the testatrix gave all the rest, residue and remainder of her estate to her two sons, the petitioner and respondent, respectively. By his answer the respondent alleged that the testatrix was seized of the nineteen-acre tract at the time of her death; denies that it was devised under the residuary clause; and asserts that since April 11 1913, the date of the death of the testatrix, his mother, he has been in sole and exclusive possession of the land in his own right, claiming, holding and possessing the same as tenant in fee simple in severalty, and that the petitioner was not since the death of the testatrix in possession.

No other pleading was filed, and the case was argued by the solicitors for the parties. For the petitioner it was urged that the tract in question was not part of any of the tracts of land disposed of by the testatrix, and, therefore, it passed under the residuary clause. The respondent urged that it appeared from the pleadings that there was a controversy as to the title of the petitioner, and, therefore, the petitioner should be relegated to proceedings at law to establish his title.

It is true that the right to partition depends on a co-tenancy, and to constitute a co-tenancy two or more persons must together hold lands. This holding must be what is now equivalent to a freehold, one of the essential features of which is possession. Unless he has an estate in possession one cannot enforce an involuntary partition. Freeman on Co-tenancy and Partition, § 446. There can be no partition by one tenant in common disseized by a co-tenant, Ex parte Burgess, 1 Del.Ch. 233, 238; and ejectment will lie by a tenant in common against a co-tenant. Milbourn v David, 12 Del. 209, 7 Houst. 209, 30 A. 971. A subsisting adverse possession existing at the time the action is commenced is a bar to the right to partition. Clapp v Bromagham, 9 Cow. (N. Y.) 530; Florence v. Hopkins, 46 N.Y. 182; Van Schuyver v. Mulford, 59 N.Y. 426; Jenkins v. Van Schaack, 3 Paige (N. Y.) 242; McMasters v. Carothers, 1 Pa. 324; Rich v. Bray, 37 F. 273, 2 L. R. A. 225.

The matter is thus stated in Florence v. Hopkins, supra:

"To maintain an action for the partition of lands, the plaintiff must, at the time of the commencement of the action, have an actual or constructive possession, in common with the defendants, of the land sought to be partitioned. Where the premises are held adversely, the party out of possession cannot try the question of his title in this form of action. A subsisting adverse possession is an absolute bar to the action. It is intended for the partition of lands in the possession of part owners, and not for the recovery of the possession of premises held adversely. This was the rule of the common law. If one coparcener disseized another, during the disseizin, a writ of partition would not lie between them; and the reason was, that they did not hold together and undivided. Co. Litt. 167; 16 Viner, 225, Partition,' 1."

It is also held in some of the decided cases that the duration of the adverse holding is not important, but it is sufficient to bar the remedy of partition if there be an ouster, or hostile possession, even for a short time. McMasters v. Carothers, 1 Pa. 324; Florence v. Hopkins, 46 N.Y. 182; Clapp v. Bromagham, 9 Cow. (N. Y.) 530.

In Florence v. Hopkins, supra, it was said by the court:

"The duration of an adverse possession is material, upon the trial of the question of title in an action to recover possession; but it cannot be material in determining where the possession was at the time of the commencement of the action."

As between persons who admittedly took title as tenants in common, or joint tenants, the proof of an ouster of one of them by the other must be stronger than between strangers, because the possession of one is the possession of the other. So, too, adverse possession and disseizin may not in all particulars be identical; still, their effect is the same for the purpose of terminating a possession held in common. Florence v. Hopkins, supra.

Applying these principles...