The compulsory partition of a joint estate, by allotment or by sale of the premises and distribution of the proceeds of sale, is another recognized class of involuntary alienations. The co-tenants of a joint estate may make a voluntary partition by mutual conveyance to each other of their share in different parts of the estate; that is, by dividing up the estate into several parcels, and making conveyance of one parcel to each, all joining in the deed or deeds, a partition can be made.1 This was effected merely by the joint exercise of the right of alienation. The consent of all had to be obtained, for all had to join in the deed of partition. Involuntary partition is quite different. This gives one co-tenant the right to take away the property of another against his will, and compel him to accept in the place of it a different interest in the land, or his share in the proceeds of sale. At common law, no suit for partition of a joint estate could have been sustained against the will of any one of the co-tenants, except in the case of an estate in coparcenary; and it was not until the reign of Henry VIII. that any legal action was provided for compulsory partition. The distinction, made by the common law in this connection between estates in coparcenary and other joint estates, rests upon the fact that the estate in coparcenary arises by operation of law, by descent to the heirs, without the consent of the co-tenant. It was but reasonable that the common law should provide a means of converting the estate in coparcenary into estates in severalty. The other joint estates are created by and with the consent of the cotenants, for they are always created by purchase, and they may be presumed to have intended that the estate should ever remain a joint estate, at least as long as all the cotenants do not agree to a partition. But, yielding to the pressure of public opinion, which has always in England

S. W. 426; Zbranikov v. Burnett (Tex. Civ. App.), 31 S. W. 71. But see Willis v. Hodson, 79 Md. 327.

1 Tiedeman on Real Prop., § 260; 1 Washb. on Real Prop. 676.

and in this country demanded the removal of all restrictions upon the free alienation of land, and the regulation of estates in land in such a manner that a change of ownership may take place in the easiest possible manner, statutes were passed in the reign of Henry VIII., and likewise in the different States of the Union, creating a legal action for the compulsory partition in all joint estates except estates in entirety.1 The right of compulsory partition of all joint estates, as an invariable incident of these estates, except in the case of tenancies in entirety, has come down to us as an inheritance from the mother country, and all joint estates in the United States have been created in actual or implied contemplation of the possibility of a compulsory partition. Consequently, no question can arise as to the constitutionality of laws providing for compulsory partition. It would be different if the right of compulsory partition were granted now for the first time, and the statute was made to apply to existing joint estates. So far as it applied to existing joint estates, the law would be unconstitional, because of its interference with vested rights." But all subsequently created joint estates would take effect subject to this provision for compulsory partition, and no one's rights could in such a case be violated.

No partition could be made of a tenancy in entirety; principally, because a man and his wife could not sue each other. The right of compulsory partition was therefore not an incident of tenancies in entirety.3 It has been much mooted, whether tenancies in entirety were not by implication converted into tenancies in common by statutes, which in general terms give to married women in respect to their property, the rights and powers of single women. Although there are a few cases, in which

1 Tiedeman on Real Prop., §§ 261, 262, 290; 1 Washb. on Real Prop. 651, 676; Williams on Real Prop. 103.

? See Richardson v. Monson, 23 Conn. 94.

❜ Tiedeman on Real Prop., § 242; 1 Washb. on Real Prop. 673.

the courts have held that tenancies in entirety were inferentially abolished,1 the majority of the cases deny that these statutes have had any effect upon the law of estates in entirety; and that a conveyance of lands to a man and wife makes them tenants in entirety, with the common-law rights and incidents of such tenancies, now, as before the statute.2 The right to the continued existence of the tenancy in entirety, except when it is destroyed by a voluntary partition, is a vested right which cannot be taken away by subsequent legislation. A statute, which gave to tenants in entirety the right of compulsory partition would be unconstitutional, so far as it was made to apply to existing tenancies in entirety.

The text finds support in one case from North Carolina, in which it was held that a law, which extended the power of partition to remaindermen, where there is an outstanding life-estate, could not affect the title of one who acquired his interest in the land prior to the passage of the act.3 And in New York, an act was held to be unconstitutional, which provided, in the case of a petition where there were unknown heirs, that after the lapse of twenty-five years, the property may be sold, and the shares of the known heirs be distributed between them.'

In a Pennsylvania case," a law was sustained, which authorized the sale of trust property by decree of court, at the solicitation of some of the beneficiaries, notwith

1 Clark v. Clark, 56 N. H. 105; Cooper v. Cooper, 76 Ill. 57; Hoffman v. Steigers, 28 Iowa, 302.

' Marburg v. Cole, 49 Md. 402 (33 Am. Rep. 266); Hulett v. Inlow, 57 Ind. 412 (26 Am. Rep. 64); Hemingway v. Scales, 42 Miss 1 (2 Am. Rep. 586); McCurdy v. Canning, 64 Pa. St. 39; Diver v. Diver, 56 Pa. St. 106; Bennett v. Child, 19 Wis. 365; Fisher v. Provin, 25 Mich. 347; Grover v. Jones, 52 Mo. 68; Robinson v. Eagle, 29 Ark. 202; Goelett v. Gori, 31 Barb. 314; Meeker v. Wright, 75 N. Y. 262. Gillespie v. Allison, 115 N. C. 542.

People v. Ryder, 65 Hun, 175.

In re Freeman's Estate (Pa.), 37 A. 591.

standing the unreasonable objection of others. But where a deed of trust expressly prescribes the mode of sale of such property, a subsequent statute cannot establish other requirements, or direct any other mode of sale, without interfering with vested rights or impairing the obligation of a contract, as the case may be.1

A statute of Kentucky 2 authorized the sale of real estate in fee, upon the petition of the life tenant, with or without the consent of the tenant in remainder or reversion. The object of the statute was the same which prompted the grant of the right of compulsory partition, viz.: to facilitate the change of ownership in lands. The statute was declared to be unconstitutional, except in its application to cases in which the reversioner or remainder-man is laboring under some disability, such as infancy, insanity, or the like. It was claimed that in no other case could a citizen be deprived of the right to manage his property by State interference. There cannot be any doubt of the unconstitutionality of the law when it is applied to existing life estates, remainders and reversions, although such laws have been sustained in Massachusetts and Connecticut.4 The application of the statute to such

1 International Building and Loan Assn. v. Hardy, 86 Tex. 610. See Brown v. Challis, 23 Colo. 145, as to the prospective operation of all statutory changes in the law of partition.

2 Civil Code, § 491.

› Glossom v. McFerran, 79 Ky. 236. But see Varble v. Phillips (Ky.), 20 S. W. 306, where such an act was sustained in the case of contingent remainders. See, also, Gillespie v. Allison, 115 N. C. 542.

• Statute authorized sale of lands on petition of life tenant: "It is said by the petitioners that this resolution deprives them of their interest in the property against their will and is therefore void, not only as opposed to natural justice, but as in conflict with the provisions of the constitution of the State. It was held by this court in the case of Richardson v. Monson, 23 Conn. 94, that the statute which authorizes the sale of lands held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot conveniently be made in any other way, is constitutional. That case was ably discussed by counsel, who offered some arguments against the constitutionality of the statute,

cases would operate to deprive persons of their vested rights, and consequently would be unconstitutional. But in its application to future cases, the statute violates no provisions of the constitution, for like the statutory right of compulsory partition, it would attach as an ordinary incident to all subsequently created estates for life, and in remainder or reversion: no vested right would be invaded, for the vested rights of those who would be affected by the compulsory sale, would be acquired subject to the exercise of this power.

Another case of involuntary alienation occurs under the operation of the so-called betterment laws. Under the common law maxim, quidquid plantatur solo, solo credit, whatever is annexed to the soil, whether by the owner or by a stranger, without the consent of the owner, becomes a part of the soil in legal contemplation, and consequently the property of the owner of the soil. If a stranger makes an erection upon the land with the consent of the owner, the property in the house or other erection remains in the licensee, and he can remove it whenever the license is revoked. If he does not then remove it, he loses his right

the

which have been urged upon our consideration against the validity of this resolution. It is difficult to see any distinction in principle between the two cases. When a sale is made of real estate held in joint tenancy, tenant opposed to the sale is as much deprived of his estate by the change which is made, as these petitioners are of their property, by the change authorized by this resolution. In either case the parties are not subjected to a loss of their property. It is simply changed from one kind to another." Linsley v. Hubbard, 44 Conn. 109 (26 Am. Rep. 431).

"The legislature authorizes the sale, taking care that the proceeds shall go to the trustees for the use and benefit of those having the life estate, and of those having the remainder, as they are entitled under the will. This is depriving no one of his property, but is merely changing real estate into personal estate, for the benefit of all parties in interest. This part of the resolve, therefore, is within the scope of the powers exercised from the earliest times, and repeatedly adjudged to be rightfully exercised by the legislature." Sohier v. Mass. Gen. Hospital, 3 Cush. 496; Rice v. Parkman, 16 Mass. 326.