Middlebrook v. Travis

¶1(concurring.) The plea contained in the answer of the defendant Travis that, at the time of the commencement of this action, there was an action pending in this court brought by this appellant against the other parties to the action, with the exception of such as were husbands of some of the tenants in common, and also against the tenants in possession, and that certain parties (naming them) were tenants in possession, and were not parties to this action, was a good plea in abatement. Parties in possession of property sought to be partitioned are not only proper parties, but necessary parties, because without their presence their rights cannot be adjudicated upon in such a manner as shall be binding upon them. A party in possession, with an unrecorded deed, by his possession gives notice to all the world of the existence of his claim; and, if there is any outstanding claim by any person in possession, the only way in which it can be cut off is by making him a party to the action where the premises are sought to be partitioned and sold. Therefore, if there are parties in possession, and such parties are not made defendants in the partition action, it is a defect which any of the defendants have a right to avail themselves of; and, if the defendants in this action had proven that tenants in possession were not made parties, it would have been the duty of the court to have refused a decree until those parties had been brought in, so that they could be bound by it. But the difficulty with the defendants’ position is that, although they *674have alleged in the answer, and requested the court to find, that certain tenants in possession were not made parties, there is no proof of the fact, and it does not appear to be admitted anywhere in the record. The claim in respect to the husbands of some of the tenants in common being necessary parties cannot be supported, because a husband has no interest whatever in the real estate of his wife unless she dies possessed of the same, having had living issue of the marriage. For the failure to prove the fact stated in the plea in abatement, it is necessary to concur in the opinion of Mr. Justice O’Brien for affirmance.