Plano Manufacturing Co. v. Kindschi

111 N.W. 680, 131 Wis. 590, 1907 Wisc. LEXIS 235

• Court: Wisconsin Supreme Court
• Decided: April 30, 1907
• Status: Published

Opinion

Kerwin, J.

Tbe complaint shows tbat tbe plaintiff and defendant H. H. Thomas were at tbe time tbe action was commenced tenants in common of tbe life estate. Tbe answering defendants are owners of tbe reversion and deny tbe right of tbe plaintiff to partition, and further deny tbat plaintiff is entitled to sale of tbe fee or reversionary interest in the property, and further insist tbat they are improper parties defendant and tbat tbe court below properly dismissed tbe complaint. Tbe statute expressly regulates tbe subject and provides tbat joint tenants or tenants in common may bave partition, and tbat such action may be maintained by any person who has an estate in possession, but not by one who has only an estate in remainder or reversion. Sec. 3101, Stats. (1898). It further provides tbat every person having an interest in tbe premises may be made a party, defendant. Sec. 3102, Stats. (1898). Sp it is clear from tbe express provisions of tbe statutes that all persons having an interest in reversion are proper parties defendant. There can be no doubt that tbe plaintiff and defendant H. H. Thomas were entitled to partition of tbe life estate! Sec. 3101, Stats. (1898); Pabst B. Co. v. Melms, 105 Wis. 441, 81 N. W. 882; Ullrich v. Ullrich, 123 Wis. 176, 101 N. W. 376; Hinman v. Hinman, 126 Wis. 191, 105 N. W. 788; Freeman, Cotenancy & Partition, § 440. It is also clear that tbe owners of the reversion were proper parties defendant in tbe action for partition of tbe life estate. Sec. 3102, Stats. (1898); Morse v. Stockman, 65 Wis. 36, 26 N. W. 176. The court below, therefore, erred in dismissing tbe plaintiff’s complaint on the objection of tbe answering defendants.

But we are asked further to determine upon this appeal whether, in an action for partition by a life tenant, where tbe reversioners are defendants, their interests may be sold and partition made of tbe whole estate in the land, including tbe fee held by owners of tbe reversion. It is insisted that tbe plaintiffs in this action are entitled to partition not only of tbe life estate, but of tbe fee or reversion as well. We think tbe statute heretofore cited clearly excludes such right. Sec. 3101, Stats. (1898). Counsel for appellant present an able argument on this question and cite many authorities which appear to give some support to tbe general contention made by appellant upon this question; but a careful examination of tbe authorities cited convinces us that they are not controlling, as they are quite different in their facts, and moreover are based upon statutes different from ours. We are satisfied that under our statutes relating to partition a life tenant can only have partition of the life estate. Freeman, Cotenancy & Partition, § 440; Aydlett v. Pendleton, 111 N. C. 28, 16 S. E. 8, 32 Am. St. Rep. 776 and note; Seiders v. Giles, 141 Pa. St. 93, 21 Atl. 514; Metcalfe v. Miller, 96 Mich. 459, 56 N. W. 16; Simmons v. MacAdaras, 6 Mo. App. 297; Parks v. Siler, 76 N. C. 191; Hodgkinson et ux., Petitioners, 12 Pick. 374; Pabst B. Co. v. Melms, 105 Wis. 441, 81 N. W. 882.

We regard further discussion unnecessary. We hold that upon the case made by the eomplaint-the plaintiff is entitled to partition of the life estate only; that the answering defendants are proper parties defendant; and that the court below.should not have dismissed the complaint.

By the Court. — The judgment of the court below is reversed, and the action remanded for a new trial.