Filed July 13, 1950.
1. Partition: Homestead. A surviving spouse who elects to partition the homestead premises thereby forfeits all homestead rights therein. 2. Partition: Estates. At common law an estate in remainder subject to an existing particular estate in the whole of the real estate could not be the subject of involuntary or compulsory partition. 3. Common Law. The adoption of the common law by this state was strictly qualified and limited and any part thereof may be abrogated by statute or modified or disregarded by this court as not applicable. 4. Partition: Estates. The rights of an owner of a life estate in the whole of the premises, of which partition is sought by the owner of an estate in remainder therein, cannot over the objection of the life tenant be in any way or to any extent changed or disturbed. 5. ___: ___. A remainderman in fee of an undivided interest in real estate may maintain a suit for partition against the owner of the remaining undivided interest in remainder, the whole of the premises being subject to a life estate. 6. ___: ___. The mere existence of a life estate in the whole of the premises does not prevent partition among the remaindermen prior to the death of the life tenant. If the life tenant consents or does not object, the whole of the real estate may be sold. 7. Partition. A legal right of partition of property is absolute and not a matter of grace. 8. Cases distinguished. Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227, and Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485, are discussed and distinguished.
APPEAL from the district court for Lincoln County: ISAAC J. NISLEY, JUDGE. Reversed and remanded with directions.
Baskins Baskins, for appellant.
Beatty, Clarke, Murphy and Morgan, and William S. Padley, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is a suit to partition land in Lincoln County. Demurrers to the petition were sustained on the ground that a cause of action for involuntary or compulsory partition was not shown because of the existence of a life estate in the whole of the land. Appellant elected not to plead further, and the case was dismissed. The appeal is from the judgment of dismissal.
Emil F. Krepcik is the owner of a life estate in the land. Appellant is the owner of a part of the land subject to the life estate. Appellees Joseph F. Krepcik, Anna M. Bloomenkamp, Emil E. Krepcik, Edward R. Krepcik, Louis W. Krepcik, Louisa C. Pavelka, Grace Ringenberg, and Violet Krepcik, are the owners of the balance of the land subject to the life estate.
Grace M. Krepcik was the owner of the land, and it was occupied by her and her husband, Emil F. Krepcik, as their homestead at the time of her death. The appellees, except Violet Krepcik, are their children. Calvin L. Krepcik was their son. He died after the death of his mother and left surviving him Violet Krepcik, his widow, and Emil F. Krepcik, his father, as his only heirs. Emil F. Krepcik conveyed to appellant all his interest in the land except his life estate.
The owner of the life estate has not objected to partition. He defaulted on October 18, 1949. The effect of this is he disregards the lawsuit and, so far as he is concerned, the allegations of the petition may be accepted as true, including the statement that he has a life estate in all the land. Danbom v. Danbom, 132 Neb. 858, 273 N.W. 502. It is not claimed that there has been a waiver, release, or extinguishment of the life estate, or that the owner thereof has elected to have or permit partition of the land. If he had, the life estate or "homestead right of the survivor" would have terminated. 40-117, R. S. Supp., 1949; Metzger v. Metzger, 108 Neb. 613, 188 N.W. 229.
Appellant and appellees are common owners in fee of a vested remainder in the land. Their estate is subject to the life estate of Emil F. Krepcik, an estate in possession in the whole of the land. The problem of this appeal may thus be stated: Can a remainderman in fee of an undivided interest in real property maintain a suit for partition thereof against the owners of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another? Independently of statute, a suit in partition may not be maintained by one whose undivided estate is in remainder only. 40 Am. Jur., Partition, 111, p. 95; 47 C. J., Partition, 49, p. 289, 175, p. 341; Freeman, Cotenancy Partition, 440, p. 534; 2 Tiffany, Real Property (3d ed.), 475, p. 312. The case of appellant therefore must prevail, if at all, upon statutory authorization.
The legislation on the subject of partition is significant. The territorial laws provided that: "When the object of the action is to effect a partition of real property among several joint owners, the petition must describe the property and the respective interests of the several owners thereof, if known." Title 26, p. 538, R. S. 1866 (802, Code of Civil Procedure). Nebraska became a state March 1, 1867, and the territorial laws became the laws of the state. Title 26, p. 538, R. S. 1866. The Legislature of Nebraska of 1871 amended this section as follows: "When the object of the action is to effect the partition of real property among several joint owners, the petition must describe the property, and the respective interests and estates of the several owners thereof, if known. All tenants in common, or joint tenants of any estate in land, may be compelled to make or suffer partition of such estate or estates in the manner hereinafter prescribed." Laws 1871, 1, p. 112. Section 802 of the original code has become section 25-2170, R.R.S. 1943, and it is the identical language of the amendment of 1871 except the words "several interests" have been substituted for "respective interests" in the first sentence, and the words "several joint owners" are used in place of "several owners" where they last appear in the first sentence.
The statute before the amendment of 1871 did not provide who was qualified to maintain an action for partition of real estate. The common law conferred this remedy upon joint tenants, tenants in common, owners of estates for life or years, and owners of estates in which some of the cotenants held for term of life or years and others held estates of inheritance. A prerequisite was an estate in possession, and none but parties having such estates were bound by the judgment, but the partition did not affect estates in remainder or contingency. Tenants of estates in remainder were not permitted to interfere with tenants in possession, but tenants in possession had power to compel partition confined to their particular estates but could do nothing towards effecting a severance of estates in remainder or reversion. It was the rule at common law and under the English statutes that estates of remainder or reversion could not be divided by proceedings for compulsory partition. Freeman, Cotenancy Partition, 439, p. 532, 440, p. 534; 2 Tiffany, Real Property (3d ed.), 476, p. 315. The common law applies in this state except as abrogated by statute or modified by decision of court. C. VII, 1, p. 31, R. S. 1866; 49-101, R. S. 1943; In re Estate of Lewis, 148 Neb. 592, 28 N.W.2d 427.
It is presumed that the Legislature of 1871 knew the limitations and conditions of partition as imposed by the common law, including the requirement of possession or right of possession, when it by the exercise of its powers changed the law by an amendment thereof. In this situation it provided in simple clear language that all tenants in common or joint tenants of any estate in land may be compelled to make or suffer partition of such estate. It did not resort to any words of technical meaning indicating quality or kind of an estate owned by tenants in common or joint tenants, such as an estate in land held by them or all tenants in common or joint tenants who hold any estate in land. The words "held" or "hold" when used in reference to interest entitling an owner to partition imply a tenant of a freehold and have been construed as denoting an estate of present possession. Smith v. Gaines, 39 N.J. Eq. 545; Allnatt on Partition, p. 53. The Legislature used only the words any estate in land. It has not been decided during the more than three quarters of a century since the amendment of this statute that ownership of a freehold estate was indispensable to a resort to the remedy of partition of real estate. This is conceded by counsel for the contending parties. It has been determined that "when there is an outstanding estate for life, vested in a third person, in the whole of the premises of which partition is sought, a remainderman cannot maintain an action in partition over the objection of the holder of the life estate." Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227. See, also, Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485. These cases presented an attempt to force partition of the whole of the real estate involved, including the life estate, against the objection and desire of the life tenant. Plaintiff in either case did not seek partition of a vested remainder owned in common by the plaintiff and others without disturbing the life estate. The court did not decide that the owner of a vested remainder cannot in a proper case maintain partition with the consent of the life tenant or where the life tenant is a party to the case and makes no objection. The limitation in those cases is that a remainderman cannot partition the whole property when the owner of a life estate objects to his estate being disturbed. An important fact in this case is that the life tenant does not make objection to the remedy or any relief asked by appellant, and the record shows no reason for denying his right to resort to the remedy of partition or for denying the relief.
The partition statute requires that the petition allege the several interests and estates of the several owners of the property and if it is supposed there are any interests unknown, contingent, or doubtful, the facts in reference thereto shall be set out. All persons having any interest contingent or otherwise must be parties and the proceeds of the property so situated are subject to the order of the court until the right becomes vested. When the shares and interests are settled, judgment shall be rendered confirming them and making partition accordingly either in kind or by sale to prevent prejudice to the owners, and when jurisdiction of the parties in interest exists, the proceedings are conclusive upon all of them. 25-2170 et seq., R.R.S. 1943. This is. indicative of great change in the law of partition from what it was at common law. It is well discussed in Scoville v. Hilliard, 48 Ill. 453, in this language: "The petition in this case conforms to the statute, and the question very naturally arises, why should tenants for life be made parties to the petition, if their rights were not to be adjudicated by the court? We can perceive no reason for it, and the statute no where intimates that the petitioner claiming an interest in the premises, shall be entitled to the possession thereof, at the time he presents his petition for partition. It is sufficient if he discloses he has such an interest as specified in the statute — that he is a tenant in common, or joint tenant, or a coparcener, and what interest the defendant is supposed to have in the same, and it would seem, though that interest may be a life estate, as in this case, the same is to be subject to the action of the court in the proceeding. * * * It is insisted by appellees, that inasmuch as the appellants do not show they were entitled to the possession of the premises, the proceeding cannot be sustained. Now, there is not a word in the statute requiring this should be shown."
Sections 9238, 9258, and 9261, Comp. St. 1922, are now respectively sections 25-2170, 25-2190, 25-2193, R.R.S. 1943. The court considered these in Weddingfeld v. Weddingfeld, supra, and said: "When these sections (9258 and 9261, C. S. 1922) are read in connection with 9238 they cannot be construed to confer upon the remainderman the right to force partition upon the holder of the life estate. Section 9261, upon which chief reliance is placed, does not authorize the court to ascertain the value of the life estate and pay it over to the holder of the life estate, but, on the other hand, it directs the court to have the entire fund created by the sale invested, `and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.' It is clear, we think, that the provisions of the last two mentioned sections are meant only to apply, first, to cases where there is an ordinary incumbrance, such as a mortgage; and, second, where there is an estate for life or for years and the holder of such estate voluntarily submits to the partition, but, having gone thus far, fails to agree with the other parties in interest upon the value of the life estate. In that event the court orders the investment of the entire amount realized from the sale."
It is argued that it would be unjust and injurious to the appellees to have a partition while the life estate exists. This is not convincing or controlling. It is conceivable that a present sale of the remainder might be more advantageous than a sale after the termination of the particular estate. A denial of partition might on the other hand be injurious and unjust to appellant. In Scoville v. Hilliard, supra, the court said: "It may be very important to one holding such an estate with another holding the same kind of an estate, that their particular interests should be set off and allotted to them, or if not capable of being so done without prejudice, that such interests should be sold. An undivided interest in property is not so secure as a separate one, and every such proprietor desires to know certainly what he does own, and so long as the owner of the life estate is not affected by the proceeding, we see no reason why that interest should be an obstacle in the way of a partition between those owning the fee as reversioners." See, also, Heintz v. Wilhelm, 151 Minn. 195, 186 N.W. 305. A right of partition given by law is imperative and absolute and is not a matter of grace. Whether the result is injurious or beneficial is not a legal consideration. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445.
It has been said, as it is contended in this case, that an important, if not the primary, purpose of partition was to avoid or relieve against the dissatisfaction and inconveniences of possession by more than one person of the identical thing. This is a disputed subject. 2 Tiffany, Real Property (3d ed.), 476, p. 317, discusses it as follows: "In asserting the inability of one having undivided interest in remainder upon a life estate to demand a partition, it is occasionally said that one who has not an estate in possession cannot maintain the proceeding, for the reason that the purpose of the proceeding is to sever the possession. This, however, appears to be questionable. It has been decided in several cases that the existence of an outstanding estate for years, whether this is by reason of a lease by one cotenant to the other, or by reason of a lease to a stranger, does not affect the right to demand partition, and this accords with the common-law authorities. The purpose of the proceeding at common law appears to have been to obtain a division of the freehold, that is, of the seisin, for which reason an estate less than freehold was entirely disregarded, and the above decisions would suggest that such is still the purpose of the proceedings, rather than the severance of the possession."
A discussion of partition of future interests in property in the Restatement of the Law makes reference to three classes of statutes, as follows: "Class 1 consists of those statutes under which the power to compel partition exists only in persons who own `present interests,' and this phrase, for historical reasons, includes persons who have estates of freehold * * * subject to outstanding estates for years. * * * Class 2 consists * * * of statutes which empower a joint tenant or tenant in common in an unconditional and indefeasible future interest to compel partition of the future interest thus held in co-ownership, under some one or more of four defined and restricted sets of circumstances. * * * Class 3 consists of those statutes which, in general, empower any joint tenant or tenant in common in an unconditional and indefeasible future interest to compel partition of the future interest thus held in co-ownership. Under this variety of statute the power is much less qualified and restricted than under the varieties of statute grouped as Class 2." Restatement, Property, c. 11, pp. 656, 657. It is also said therein: "(1) When a future interest in land is owned in a joint tenancy or in a tenancy in common, then a concurrent owner in such future interest has power to compel partition thereof when the requirements of all the Clauses of Subsection (2) are satisfied. (2) The prerequisites for the existence of the power stated in Subsection (1) are the following: (a) the state wherein the affected land is located has a statute which, in specific words, confers the power to compel partition on a joint tenant or tenant in common in a `reversion or remainder,' or in a `vested remainder or reversion,' or in `an interest or estate in land,' or which employs other language of like import; and (b) the joint tenant or tenant in common, in exercising such power, complies with all requirements specified by such statute as to matters other than the prerequisite variety of future interest; and (c) the creator of the concurrently owned future interest has not manifested effectively an intent that no such power to compel partition be present * * *; and (d) the future interest of such joint tenant or tenant in common is a future estate in fee simple absolute not subject to a condition precedent." Restatement, Property, 175, pp. 676, 677.
A statute of Illinois provides: "* * * when land, tenements or hereditaments are held in joint tenancy, tenancy in common or co-parcenary, * * * any one or more of the persons interested therein may compel a partition thereof * * *." Ill. Ann. St., 1, c. 106, p. 610; Laws 1935, 1, p. 1054. This statute is no more comprehensive than the Nebraska statute. There could hardly be less qualified or less restrictive language than that used in the statute of this state, "any estate in land." The Illinois statute has been construed to permit the owner of an undivided interest in a vested remainder, subject to a life estate in the whole of the premises, to demand partition. A case to this effect, often referred to, is Scoville v. Hilliard, supra. The petition in that case showed that appellants and appellees were the owners in fee by undivided interest in the premises and the whole thereof was subject to a life estate therein. A demurrer to the petition was sustained and the suit dismissed. The contention was that a remainderman in fee of an undivided interest in real estate could not maintain a suit for partition thereof against the owners of the remaining undivided interest in remainder, the whole premises being subject to a life estate in another. The court observed that there was not a word in the statute requiring a person demanding partition to show that he was entitled to the possession of the premises. It is said in that case: "A remainder-man, or reversioner in fee, of an undivided interest in property, may maintain a suit for partition, against the owner of the remaining undivided interest in remainder, the whole premises being subject to a life estate unexpired. * * * In order to maintain a suit for partition, our statute does not require that the petitioner claiming an interest in the premises should be entitled to the possession thereof. It is enough, if he discloses such an interest as the statute specifies — that he is a tenant in common, or joint tenant, or a coparcener, and what interest the defendant is supposed to have in the same."
In Cummins v. Drake, 265 Ill. 111, 106 N.E. 456, the court said: "Appellant being the remainder-man of an undivided interest in this property is entitle to maintain a suit for partition against the owners of the remaining undivided interests in remainder, and this is true although the whole premises are subject to a life estate which is unexpired. (Scoville v. Hilliard, 48 Ill. 453, Drake v. Merkle, 153 Ill. 318.) Partition among remainder-men does not necessarily affect the estate of a life tenant, as the remainder, if not divisible, may be sold without the life estate and the proceeds divided, or, if the life tenant consents, the whole estate may be sold. (Drake v. Merkle, supra.)" See, also, Voellinger v. Kirchner, 314 Ill. 398, 145 N.E. 638; Wells v. Dalies, 318 Ill. 301, 149 N.E. 279; Thomas v. Stoakes, 328 Ill. 115, 159 N.E. 269; Gahan v. Golden, 330 Ill. 624, 162 N.E. 164; Tilton v. Tilton, 382 Ill. 426, 47 N.E.2d 454.
The Minnesota statute provides: "When two or more persons are interested, as joint tenants or as tenants in common, in real property in which one or more of them have an estate of inheritance or for life or for years, an action may be brought by one or more of such persons against the others for a partition thereof according to the respective rights and interests of the parties interested therein, * * *." Minn. S. A., 558.01, p. 124. In Heintz v. Wilhelm, supra, it was by the court concluded that: "Under our statute a cotenant in the remainder may compel partition, although the life tenant is in possession of the property. * * * Where there is an estate in severalty for life or years in the property to be partitioned, the partition, whether in kind or by sale, should be made subject to such estate, unless it be clearly shown that a due regard for the interest of all parties requires that the precedent estate be included therein." It is further said therein: "At common law a cotenant could not compel a partition of the land, unless he was entitled to the present possession of it as a cotenant, and hence he could not enforce a partition where his estate was subject to a life estate, as the life tenant was entitled to possession. Our statute has changed this rule, * * *. If, in making a partition, the land is to be sold and the proceeds divided, and there is an estate for life or for years in the whole or any part of it, the sale may be made subject to such estate, `but if, in the judgment of the court, a due regard for the interest of all parties requires that such estate be sold, the sale may be so ordered.' G. S. 1913, 8052. * * * Estates for life or years in severalty may be included in the sale under our statutes when a due regard for the interest of all parties requires it." See, also, Rekovsky v. Glisczinski, 170 Minn. 303, 212 N.W. 595.
This court in Oliver v. Lansing, 50 Neb. 828, 70 N.W. 369, said concerning the Illinois statute above referred to that it was held by the Illinois court that as the statute contained nothing requiring that the applicant should have an estate entitling him to be in possession, and as it clearly contemplated bringing before the court the owner of the life estate, it must be construed as authorizing a reversioner or remainderman to maintain a suit for partition against the owner of the remaining undivided interest in reversion or remainder, although the whole premises were subject to a life estate. The court made reference to Scoville v. Hilliard, supra, and Hilliard v. Scoville, 52 Ill. 449. It was also said therein that a like construction was given a similar statute in Minnesota. Cook v. Webb, 19 Minn. 167. This court then significantly observed that the conclusion reached by the courts of Illinois and Minnesota was "in each instance influenced by a statute much resembling our own * * *."
The statute of Missouri on this subject is to the effect that "where lands, tenements or hereditaments are held in joint tenancy, tenancy in common or coparcenary, * * * any one or more of the parties interested therein, * * * to file a petition in the circuit court of the proper county asking for * * * partition * * *." 7132, R. S. 1889.
In Hayes v. McReynolds, 144 Mo. 348, 46 S.W. 161, the court referred to this statute and said: "The statute quoted authorizes any one owning an interest in real property, though subject to a life estate, dower or curtesy, to prosecute an action to have his interest partitioned subject to such estate." See, also, Flournoy v. Kirkman, 270 Mo. 1, 192 S.W. 462; Reinders v. Kopplemann, 68 Mo. 482, 30 Am. R. 802.
The owner of a life estate in the whole of real estate sought to be partitioned may object to the partition of his estate and in that event the suit may not be maintained; or the owner of the particular estate may consent to the partition of the whole real estate; or if he does nothing in the case, the court may partition the real estate and the life tenant may claim a life estate in the proceeds, and if the interested parties cannot agree on the present value of the life estate, the court may order all of the proceeds of the sale invested and the income paid to the life tenant during his life.
The judgment is reversed and the cause remanded, with directions to the district court to overrule the demurrers to the petition.
REVERSED AND REMANDED WITH DIRECTIONS.