#### JAMES M. DONNELL & AL. *vs.*JOHN MATEER & AL.

The right of a tenant in common to partition of a legal estate is as absolute in a Court of equity as in a Court of law. The Courts, having concurrent jurisdiction, as to an actual partition, must adjudicate on the same principies.

In the case of a petition at law for an actual partition, if the defendant wishes to avail himself of an equitable defence, as, lor instance, a claim under a contract for purchase, he must obtain an injunction to stay proceedings at law, until the cause can be heard in equity.

If the application for partition be to a Court of Equity, it is not sufficient for the defendant to rely upon his equitable grounds of defence in his answer. He ought, to entitle himself to his equity, to file a cross bill, for which the Court would allow him a reasonable time; but his failure to do so, will not prevent him from filing a separate bill for relief, as the partition affects the legal title only, and the share, assigned In severalty, could still ha reached.

Cause transmitted from the Court of Equity of Rock-ingham County, at the Full Term 1850.

This was a bill for the sale, for partitior, of a tract of land, alleged by the plaintiffs to belong t.o them and the defendants, as tenants in common. The case appeared from the pleadings tobe this:

William Mateer died intestate in 1835, seised in fee of a tract of land containing 100 acres, and described in the bill. He left no issue; but his heirs at law were two brothers, the defendants, Andrew and John, and two sisters. Polly and Margaret, who held the premises as tenants in common. Polly intermarried .with Joseph Donnell, *95and they had issue one child, James M. Donnell, who is one of the plaintiffs, and then died ; and Margaret intermarried with Joseph D. Watson and had one child, John H. C. Watson, who is one of the plaintiffs, and then she died. The bill was filed in March 1849 and prays for partition of the premises, and, to that end, for a sale thereof, and that one fourth part be set out to the plaintiffs respectively. The answer admits the seisin of William and the descent from him to his brothers and sisters, as stated in the bill. It further states, that shortly after the death of William, their father, James Mateer, made a contract with his children John, Polly, and Margaret, for the purchase of their shares of the premises at the price of $375, which he discharged by paying to each of them $125 ; but that, the transaction being in the family, he took no receipts therefor, nor conveyance, nor any written memorandum of the contract of the land: that he also agreed, at the same time, with the defendant, Andrew, to give him the same price for his share, or to leave the whole tract to him by will; and that he afterwards devised the land to Andrew in fee and died in 1845. The answer states, that the plaintiff, Donnell, had recently acknowledged, that his father and mother made the contract of sale and received their share of the purchase mo j ney, and for that reason he professed himself willing to convey to the defendant, Andrew, his one fourth part of the land. And the answer insists, that the contract of sale is good and valid, and ought to be specifically decreed in this Court; and that, therefore, the defendant, Andrew, is the equitable owner of the whole tract, and that the plaintiffs are trustees for him, and ought not to have the partition prayed for.

*Miller,*for the plaintiffs.

*Morehead,*for the defendants.

*96Ruffin, C. J.

The proofs of the alleged contract between the father and his daughters are in some respects very unsatisfactory. But the Court does not go into them, because, if they fully sustained the answer, no case would be made out, on which the prayer of the bill could be denied. The parties to this suit are tenants in common, and either one of them has an absolute right to partition, either specifically, or by a sale and a division of the price. The plaintiffs might have proceeded at law and obtained a partition of the land, and no resistance could be made against it at law. It is true, the defendant Andrew, as the devisee of his father, might have filed his bill for the specific performance of the contract of sale, and, by showing a *prima facie*case for a decree for a conveyance, he would have entitled himself *to*an injunction against proceeding at law, until the cause could be heard in equity. But very clearly he could not have an injunction upon a bill framed upon the matter contained in.this answer, since the contracts set out are absolutely void and could not entitle the party to a decree for spe-fic performance on the hearing. They are void, by the statute of frauds, because they were not in writing, and that of Mrs. Donnell, because she was married at the time. The right of a tenant in common to partition of a legal estate is as absolute in this Court as it is at law; lor the jurisdiction as to actual partition is concurrent in the Courts of law and equity, and therefore both Courts must adjudicate on the same principle. The only necessity a tenant in common is under, for coming into the Court of Equity, Is that, which arises from the inconvenience of an actual .partition, and induces him to apply for a sale. But that does not change the principle applicable *to*this *cane,*and the plaintiffs are strietly entitled to partition in the one form or the other, when the legal tenancy in common is admitted, unless the other party, upon a proper bill, get a decree declaring them trustees for him and ordering a con > *97veyance. It does not suffice to state in the answer, as an obstacle to the partition, equitable grounds for such a decree ; for, peradve'nture, the party might never institute a suit, putting the matter directly in issue and entitling him to the decree for specific performance. Therefore the defendant, Andrew, in order to get the benefit of the case he alleges, should have filed his cross bill and obtained an order to bring both causes on to be heard together. Without that, the legal rights of the plaintiffs must prevail, so far as to require the decree for partition.. The partition will not, indeed, deprive the defendant of the right to specific performance, as the partition affects the legal title only, and the share assigned in severalty to the defendant’s vendors could still be reached by him. It is .admitted, however, that it is more convenient and less expensive to all parties, that partition should not be made before the equitable rights are settled ; and, if the defendant had a case with any color for a decree, the Court would await his filing across bill for a reasonable time. But, as has just been said, the defendant’s case, as stated by himself, is radically defective; since, as to one of the vendors, there was coverture at the time of the alleged contract, and, as to both, the contract was oral and the plaintiffs have taken advantage of that defect by bringing their present bill. The plaintiffs must, therefore, be declared to be entitled to partition, and, if the parties do not agree on the point, it must be referred to the Master to enquire, whether actual partition can or cannot be made without injury to the parties, or some of them, and, if it be found that it cannot, then to state to which of them and to what amount. The defendant, Andrew, must pay the costs up to the hearing.

Per Curiam. . . Decree accordingly.