Opinion
(December Term, 1851.)
1. A Court of Equity will not take jurisdiction, simply to put a construction on a deed or devise of land; because that is a pure legal question. But when a case is properly in a Court of Equity, under some of its known and accustomed heads of jurisdiction, and a question of construction incidentally arises, the Court will determine it, it being necessary to do so in order to decide the cause.
2. Where a testator left to A "eighty acres of land, the place on which he lives, getting his complement on the north side," and to B "the remainder of the place on which A lives": Held, that A and B were so far tenants in common as to give jurisdiction to a Court of Equity to decree a partition, and, for that purpose, to establish a dividing line, having a survey made under the direction of the Clerk and Master.
APPEAL from the interlocutory decree of the Court of Equity (85) of RANDOLPH, at the Fall Term, 1850, BATTLE, J.
Mendenhall for the plaintiffs.
No counsel for the defendant.
The will of Tobias Hendricks contains this clause: "I will and bequeath unto my son Solomon 80 acres of land, the place on which he lives, getting his complement on the north side. I will and bequeath unto my daughter Mary the remainder of the place on which my son Solomon lives." Mary is the plaintiff, together with her husband and Alderd, and alleged purchaser under them, and Solomon is the defendant. The bill alleges that the tract contains about 130 acres, and the defendant refuses to make a division by running a straight line across the tract so as to take off 80 acres for him on the north side or to make one any other way. The prayer is that a partition may be made by a decree of this Court.
A demurrer was sustained in the court below. In this there is error.
It is said this bill is an application to a court of equity to put a construction upon a devise, which, being purely a legal question, should be decided in an action of ejectment, and a court of equity has no jurisdiction.
We grant that a court of equity never has assumed jurisdiction simply to construe a devise, for it is in the nature of a conveyance. The title passes directly to the devisee. In this it differs from a will of personal estate, for a will does not pass a "chattel" directly to a legatee, but mediately, by first giving it to the executor, whose assent was necessary to vest the legal title. Hence, there is a trust or something in the nature of a trust, and upon that ground courts of common-law jurisdiction do not give a remedy for legacies, for which reason, and (86) for the further reason that the right to a legacy always involves a matter of account, courts of equity have assumed jurisdiction to construe wills in regard to personal estate, so as to settle the balances and establish the right of legatees. A devisee has a plain legal right, and can by an action of ejectment obtain a construction of the devise, just as a bargainee can do in reference to a deed.
But courts of equity have always taken jurisdiction in cases of partition, and if in the exercise of that jurisdiction it becomes necessary, incidentally, to put a construction upon a devise there is no reason, when the court is constituted like ours — that is, when both courts are held by the same judge — why the judge sitting in a court of equity should arrest the case and send it himself, sitting in a court of common law, for the purpose of obtaining a construction of the devise. This is every-day practice. If a case is in a court of the equity and it becomes necessary, in order to the decision, to say whether by a proper construction "the rule in Shelley's case," for instance, applies, that court proceeds to determine the question whether it be presented by a deed or by a devise.
The amount of it is this: a court of equity will not take jurisdiction simply to put a construction on a deed or a devise, because that is a pure legal question. There a plain remedy at law, and such an assumption on the part of a court of equity would break down all distinction between the two jurisdictions. But where a case is properly in a court of equity under some of its known and accustomed heads of jurisdiction and a question of construction incidentally arises the Court will determine it, it being necessary to do so in order to decide the cause.
The present is a case strictly of partition, and there is no remedy except in a court of equity, for fifty actions of ejectment, supposing (87) either party could maintain one, would not establish the dividing line, because there is in fact no such line, and none other but a court of equity can make the line, and this that Court has jurisdiction to do, because there is no other remedy, and it is against conscience for the party to object to a division.
But it is said these parties are neither joint tenants, coparceners, nor tenants in common, and consequently this cannot be a question of partition. It is true, the parties are not, strictly speaking, tenants in common, but they are in a similar relation towards each other; neither has any part in severalty, and yet they own the whole tract to be divided between them, and, in fact, their relation is that of tenants in common, between whom the devisor has made a partial division, leaving it to be completed by their agreement or otherwise by a court of equity, which is the only court that can "enforce the right."
A devisee gives a tract of land to be equally divided between two. They are tenants in common, strictly speaking; and he gives a tract of land to be equally divided between A and B, but B is to have the "upper part." Their relation is that of tenants in common, with a partial division made by the devisor.
He gives, as in this case, a tract of 130 acres of land to be divided between A and B, but B is to have 80 laid off on the north side and A is to have the balance. Their relation is that of tenants in common, with a partial division made by the devisor providing that B's share shall not only be on the north side, but shall contain 80 acres, and A shall have the remnant as his share, without giving any beginning or course for the dividing line or the form of the land.
The decretal order must be reversed. If the defendant by his (88) answer admits the facts alleged he will suggest the mode of division which he insists will be right. The Court can then decide between the two modes of partition suggested, or he may refer the matter to the master with directions to have a survey and to report a scheme of division, together with the facts. To this report either party may except, and the question will thus be directly before the Court.
PER CURIAM. Reversed.
Approved: Alsbrook v. Reid, 89 N.C. 154; Cozart v. Lyon, 91 N.C. 285; Woodlief v. Merritt, 96 N.C. 228; Settle v. Settle, 141 N.C. 566; Liverman v. Calhoon, 156 N.C. 192.
(89)