¶1(dissenting): The general rule is that a tenant in common who concurrently owns an interest in land subject to an outstanding term of years has the power to compel partition.
¶2Restatement of Property, section 174, and comment b thereunder, read as follows:
“When an interest in land concurrently owned would be possessory but for an outstanding estate for years or from period to period or at will, and the creator of the interest has not manifested effectively an intent to exclude the power to partition, then a joint tenant or a tenant in common or a tenant by the entirety in a concurrently owned interest has the same power to compel partition and the same liability to be subjected thereto as he would have if no such estate for years or from period to period or at will existed, except that any partition so made leaves unaffected the estate for years or from period to period or at will.
“Comment: b. The rule stated in this section applies only to interests in land and rests, in part at least, upon the historical differentiation between seisin and possession. The tenant for years or from period to period has possession but never had seisin. The seisin remained undisturbed in those who owned the land subject to such term. Partition was available to those seised in a concurrent ownership and hence the absence of possession until after such a term (see § 154, comment /, defining a reversion, and § 156, comment e defining a remainder, so as to include an interest subject to a non-freehold interest) was outweighed by the presence of seisin. If, however, an outstanding estate for life existed, the concurrent owners subject thereto no longer were seised of the land and the actual futurity of the interests after such an estate was recognized. This differentiation between the effects of an outstanding estate for years and of an outstanding estate for life corresponds to a real difference of practical consequences. When owners of land are both seised and possessed of land they derive therefrom recurrent economic benefits in the form of its profits. When owners of land are seised of land but it is in the possession of tenant for years or from period to period the same normally is true although the recurrent economic benefits now take the form of rent. When owners of land are neither seised nor possessed because of an outstanding estate for life, the derivation of recurrent economic benefits during the continuance of the estate for life is not usual. Thus the rule stated- in this section allows partition as between concurrent owners who normally derive recurrent economic benefits from land either in the form of profits or of rents but does not recognize an equal need for the remedy as between persons, for whom such derivation normally is postponed to the future.”
¶3Ordinarily a term of years' is created by 'a” (ease with a reservar tion of rent. But' a term of years may be devised to á person under a will, rent free. Tn such case there would be no compelling reason for partition. However, in McCullough v. Finley, 69 Kan. 705, 77 Pac. 696, parol partition between fee owners subject to a life estate was upheld.
¶4*291If, then, partition is allowed among concurrent owners where there is an outstanding term of years — and whether the lease is for a long or short term (see cases cited 47 C. J. 293) — what substantial reason can be assigned why partition should not be allowed in the case at bar? The sections enacted in 1937 — 22-735, 22-736 and 22-738 — do not purport to amend the partition statutes. Under certain circumstances the executor or administrator is given the possession of the real estate owned by the deceased person at the time of his death, which is to be controlled and managed under the direction and orders of the probate court for the protection of the rights of creditors, or the heirs or other distributees. As the “possession” given the executor or administrator is not under a claim of title or ownership it merely indicates the real estate is placed in the care and custody of such appointee as a mere bailiff or custodian. Under section 22-738 when it appears the land is not needed for the payment of debts, possession is to be returned to the heirs or devisees. The custody arrangement, then, is for the sole benefit of the creditors of the estate] The evident purpose of the statute was to conserve the estate pending the administration, not to create a receivership for an indefinite duration. If partition may be had where there is an outstanding lease of twenty or forty years, where the tenant has an estate in the land, why should it be denied when the custody is given a bailiff for the temporary purpose of the administration? If partition be made in kind or by sale the outstanding debts must be paid. The majority opinion quotes Mackey v. Mackey, 99 Kan. 433, 163 Pac. 465. But what is wrong with the doctrine there am nounced? If the debts are paid the creditor cannot complain. Cannot the district court — a court having general equitable jurisdiction — -be trusted to make appropriate orders?
¶5In early times the common-law courts allowed partition among coparceners — persons who became concurrent owners by descent. By statute the right to partition was extended to joint tenants and tenants in common. (47 C. J. 295.) In the course of time the clumsy procedure for partition under the common-law writ was largely supplanted by the flexible system developed in the courts of chancery. The partition statutes of Kansas, G. S. 1935, 60-2101 to 60-2114, were enacted in view of the rules and procedure of equity. These statutes do not purport to set up a comprehensive enactment, forming a complete and self-contained system. A review of the decisions of this court reveals that the rules and principles of *292equity constitute an unfailing reservoir “to fill out the silent spaces in the enacted statute.”
¶6To strip the district court of jurisdiction in partition proceedings because a statute authorizes the executor or administrator to rent the land pending administration, cannot be justified by any reason of convenience or necessity.