¶1This was a bill in equity filed in the Circuit Court for the county of Robertson, from whence it came by appeal into this court. The defendant demurred, and the Circuit Court sustained the demurrer. The bill stated that his father was a soldier in the Revolutionary War, in the line of North Carolina ; that he died, leaving two sons and a daughter; that a warrant issued for his services, and that a grant issued upon it for 640 acres of land ; that his brother, older than himself, sold the land to Brooks, and conveyed to him in fee; and that he took and continued in possession, and was in possession at the time of filing the bill. The bill prayed for a partition between him and Brooks.
¶2Brooks is in possession, and claims the whole tract under the conveyance from the complainant’s brother. The complainant has not recovered possession in ejectment; and the defendant, Brooks, denies his title. We cannot try that legal question upon this bill for partition. Partition cannot be decreed until the complainant’s title be established at law, and then it is, of course, for a court of equity to decree it.
¶3The bill must be dismissed, because the title cannot be tried here.
¶4See Bruton v. Rutland, 3 Hum. 435; Hickman v. Cooke, 3 Hum. 640; Groves v. Groves, 3 Sneed, 187; Butler v. King; 2 Yer. 115; Nicely v. Boyles,4 Hum. 177; King’s Digest, 2689, 8829-32.