Wotten v. Copeland

7 Johns. Ch. 140

• Court: New York Court of Chancery
• Decided: July 1, 1823
• Status: Published

Opinion

The Chancellor.

The plaintiffs are entitled to a partition, as to the equity of redemption merely. The mortgage and judgment creditors have no concern with the partition; and their rights cannot be affected by it. A sale of the entire legal and equitable estate could not be effected in this way. Tenants in common of an interest less than a fee, even of an interest in a lease for years, may have partition of such minor interest, as between themselves. But the mortgagees and judgment creditors cannot be compelled to join in the partition. No relief can be prayed against them, and their rights cannot be affected by the partition. (Baring v. Nash, 1 Ves. and Bea. 551.)

The bill, as to them, must be dismissed, with costs.

As to the heirs, a partition may be had, and let a commission issue accordingly.