#### * William Mussey *versus*David Sanborn.

Partition may be had on petition of tenant for years, although the tenant *of*the other part of the premises holds the same in fee.

This was a petition for *partition.*On a trial before *Thatcher,*J., it appeared that the petitioner’s title to the moiety of the premises described in his petition was under a lease for 900 years, and that the respondent was seised in fee of the other moiety. A verdict was returned for the petitioner, subject to the opinion of the Court, upon the right of his to maintain this process under the statute.

*Hopkins,*for the respondent,

contended that partition lay, at the common law, only between, parties claiming an estate of inheritance, or at least a freehold; and that the whole intention of the legislature, in the statute of 1783, c. 41, was to give this easier process, by petition, to such parties only as were before entitled to their writ of partition. If the present petitioner should obtain partition, the respondent would still be liable to the lessor of the petitioner, or his assigns. (1)

*Whitman*for the petitioner.

(1)

*Co. Lit.*16, *a,*167, *a.*— *Dyer*52. — 2 *Mass. Sep.*470, *Cook*vs. *Allen.*

Parker, C. J.

This process is given by the statute to *allpersons interested.*The respondent contends that it was the intent of the legislature to confine it to those whose estate is an inheritance in fee, or at least a freehold, in the premises.

But we see no reason for thus restricting this beneficial process. A lessee for years of an undivided part may have as great an interest in procuring a severance as a tenant for life ; and although inconveniences may arise from allowing lessees for a short term to avail themselves of this provision, yet, on the other hand, as estates for years may be much more durable than mere freeholds, it would be dangerous to establish a principle which should except such estates from the operation of the statute. If a discrimination is necessary between estates held by long and short leases, the legislature is alone competent to make it.

If it were required to search for the intent of the legislature, in order to fix a meaning to the general term * made use of, it would be only necessary to recur to the law as it stood before the passing of the statute.

By the common law, the writ of partition would lie only between *coparceners*whose estates were equal. But, by the statute of 31 *Hen.*8, c. 1, all persons having *estates of inheritance*were allowed *144the writ. By the statute 32 *Hen.*8, c. 32, the privilege was extended to tenants in common, or joint-tenants of estates for years only. Thus stood the law when our ancestors migrated to this country; and the provincial legislature, by the statute of 5 *W. & M..*c. 19, gave the writ of partition to all joint-tenants and tenants in common, without regard to the duration of their estates. Then came the statute of the commonwealth, 1783, c. 41, entitled, “ An act for the more easy partition of lands and other real estate; ” and this gives the right of severance to *all persons interested*with others in such estate— without doubt intending to embrace all the cases before provided for, in relation to writs of partition, within those very general terms. This historical account of the law on this subject shows, very clearly, that estates for years, as well as other estates, are subject to the provisions of our statute.

*Judgment on the verdict.*