MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the Court.
In a court having general jurisdiction in equity to grant partition, as in a court of law, a tenant in common, whose title in an undivided share of the land is clear, is entitled to partition, as a matter of right, so that he may hold and enjoy his property in severalty. Story, Eq.Jur. §§ 653, 656; Parker v. Gerard, Ambler 236, Calmady v. Calmady, 2 Ves.Jr. 568; Wiseley v. Findlay, 3 Rand. 361; Smith v. Smith, Hoffman Ch. 506, and 10 Paige 470; Donnell v. Mateer, 7 Iredell Eq. 94; Campbell v. Lowe, 9 Md. 500.
Under the English statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, in force in the State of Maryland before 1801, and therefore in the District of Columbia, any tenant in common in fee might compel partition at law by division of the estate held in common. Alexander's British Statutes in Maryland 311, 312, 332; Lloyd v. Gordon, 2 Har. and McH. 254; Rev.Stat.D.C.s.92. It is unnecessary to consider how far the Supreme Court of the District of Columbia had equity jurisdiction in cases of partition before the Act of Congress of August 15, 1876, c. 297, because this act expressly empowers the court, exercising general jurisdiction in equity, in its discretion, to compel all tenants in common of any estate, legal or equitable, to make or suffer partition, either by division of the estate, or, if it satisfactorily appears that the estate cannot be divided without loss or injury to the parties interested, then by sale of the estate and division of the proceeds among the parties, according to their respective rights and interests. 19 Stat. 202. This statute, while it authorizes the court to compel a partition by division or by sale at its discretion as the facts appearing at the hearing may require, does not affect the general rule governing every court of law or equity having jurisdiction to grant partition, that partition is of right, and not to be defeated by the mere unwillingness of one party to have each enjoy his own in severalty.
In equity, as at law, a pending lease for years is no obstacle to partition between owners of the fee. Co.Lit. 46a, 167a; Com.Dig. Parcener, C. 6; Wilkinson v. Joberns, L.R. 16 Eq. 14; Hunt v. Hazelton, 5 N.H. 216; Woodworth v. Campbell, 5 Paige 518; Thruston v. Minke, 32 Md. 571; Cook v. Webb, 19 Minn, 167. The decision in Hunnewell v. Taylor, 6 Cush. 472, cited by the appellant, was governed by an express statute of Massachusetts authorizing a petition for partition "by any person who has an estate in possession, but not by one who has only a remainder or reversion," which was presently modified by an enactment that partition might be had notwithstanding the existence of a lease of the whole or part of the estate. Mass. Stat. 1853, c. 410, § 1; Gen.Stat. c. 136, §§ 3, 67; Pub.Stat. c. 178, §§ 3, 68. In Moore v. Shannon, 6 Mackey 157, there was an outstanding life estate, so that the plaintiff was not in possession of the freehold, and was therefore denied partition. See Co.Litt. and Comyn's Dig., ubi supra; Evans v. Bagshaw, L.R. 8 Eq. 469, and L.R. 5 Ch.App. 340; Brown v. Brown, 8 N.H. 93.
The present bill, after setting forth the titles in fee of the parties, alleges that the plaintiff desires to have partition of the land and his share set apart to him in severalty, or, if in the opinion of the court this cannot be done without injury to the parties and to the purposes for which the land is used, then by sale of the land and division of the proceeds, and prays for partition accordingly. The bill, following the statute, and seeking partition in either mode, as the court in its discretion might think fit, is in proper and sufficient form. Any allegation of special reasons for partition, or for having it made in one way or in the other, would have been unusual and superfluous. The decisions in Maryland cited by the appellant were made under statutes authorizing partition only when it would be for the interest and advantage of the parties that the land should be sold, and therefore held that it must be so alleged in the petition. Tomlinson v. McKaig, 5 Gill. 256; Mewshaw v. Mewshaw, 2 Md.Ch. 12.
This disposes of the only errors assigned or argued. It is not denied, and could not be, upon the proofs, that if the plaintiff was entitled to partition, it was rightly ordered to be made by sale, and not by division of the estate.
MR. JUSTICE BREWER was not present at the argument, and took no part in the decision.