#### L. T. PARKS v. O. C. SILER and others.

*Partition — Tenant ly the eurtesy.*

The Courts have'no power to order a sale of land for partition, when one, of the defendants interested therein is tenant by the curtesy and objects to the sale.

Special Proceeding commenced before the Clerk of the Superior Court of Randolph County, and heard at Pall Term, 1876, of said Court, before *Kerr, J.*

*192'William Rains died in Randolph County in 1864. Pie devised bis lands by will to his wife Milly for life, remainder to America and Caroline, his daughters.

America married the defendant, O. C. Siler. The children •by. this marriage were the other defendants, N. J. Siler, W. Siler, Martha Siler (now Brooks) and Mary Siler, a minor. America (Mrs. Siler) died in 1867. One half of the lands descended to her children, subject to the life estate of 0. C. Siler. Caroline married II. B. Allen and died in 1874 without children, and thereupon the other half of the lands descended to the said children of America Siler, who were the nieces and nephews of said Caroline. Milly Rains, the wife of the devisor, died in 1876.

The plaintiff insisted that each of the said children was ■entitled to one fourth of the whole tract of land, as tenants in common (subject to the life estate of defendant, O. C. Siler, in one-half thereof). N. J. Siler and W. Siler sold their interest in said lands to the plaintiff, who then claimed to be the owner of one-half of the land and filed a petition praying that the laud be sold and the proceeds divided .among the par! ios entitled.

The defendants in their answer deny the necessity of a sale for partition and allege that actual partition can be had without serious injury to the parties interested and pray the Court for an order for partition by metes and bounds.

On motion of the defendants, Ilis Honor dismissed the proceeding, on the ground that 0. C. Siler was entitled to a life •estate as tenant, by the curtesy in an undivided half of said lands.

*Mr. J. A. Gilmer,*for the plaintiff,

cited *Ledbetter*v. Gash, 8 Ire. 462 ; *Hassell*v. *Mizell,*6 Ire. Eq. 892 *Gash*v. *Led-better,*6 Ire. Eq. 188 ; *Holmes*v. *Holmes,*2 Jones Eq. 344, and *McHachern*v. *Gilchrist,*75 N. C. 186.

No counsel for the defendants.

*193PeaRSON, C. J.

Tbe petition was for tbe sale of land for ffhe purpose of partition. Tbe defendants object to a *sale*ifor partition, on tbe ground that tbe defendant Siler is tenant iby ¡the curtesy in one undivided moiety of tbe land ; but do mat ^object to an *actual partition*so that eaeb moiety may be Ibeld in severalty.

His Honor was of opinion that tbe plaintiff bad no right uto an order of sale and dismissed tbe proceeding. We concern’ in this opinion. At the common law *“*coparceners” anight compel partition by original writ, when tbe parceners were seized of tbe land and the one was a good "tenant to tfche *praecipe”;*but if a freehold estate intervened as an estate '.by curtesy or other life estate, tbe writ did not lie because •¡there could be no tenant of tbe *praecipe*In the case of «dower a partition could be made subject to tbe widow’s ,right, he'r dower being first assigned by metes and bounds ¡and the partition bad with respect thereto.

Joint tenants and tenants in common could not compel partition except by statute which authorizes tbe Court to •compel partition in like manner as between coparceners.

It was afterwards provided by statute that tbe Court •¡might order *a sale*for tbe purpose of partition, instead of an ¿actual partition, when tbe interest of tbe parties would be promoted thereby. And it is provided that a widow entitled to dower may join in tbe application and receive her •{third in money or a corresponding part absolutely, in lieu of .-a life estate. This leaves tbe election to tbe widow, whether -•to enjoy her dower specifically by metes and bounds as a ¡home or to take compensation in money.

In regard to a tenant by the curtesy or to one entitled to ra homestead, there is no statutory provision for the plain ¡•reason that it was presumed that persons entitled to these «estates would prefer to have “a house and home,” and would mot elect to take compensation in money. Eor instance, one «entitled to a life estate as tenant by the curtesy or as a home*194stead could hardly be supposed to be willing to let his. estate be sold and take compensation in its money, value. Leave your house and home and take the interest on $1,000 during life, is a proposition that would be rejected by every tenant by the curtesy and by every person entitled to a homestead.

' The question is,-ean the Court compel them to agree to a-■sale? The Court had no such power at common law and there is no statute which confers it.

There is no error.

Per Curiam. Judgment affirmed»