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Filed: September 2, 1976.


From the St. Joseph Superior Court, Douglas D. Seely, Jr., Judge.

Hoffman, J. Staton, P.j. and Garrard, J., concur.

Author: Hoffman

Appellant Jack Hurwich filed a complaint seeking equitable partition of certain real estate located in St. Joseph County, Indiana, alleging that appellant and appellee Bette Zoss own the fee simple title to the said tract of real estate as tenants in common subject to a life estate in said property in appellee Kathryn E. Hurwich. Thereafter, the trial court sustained appellees' motion to dismiss for failure to state a claim upon which relief can be granted. Appellant's motion to correct errors was denied and this appeal was perfected.

The sole issue presented by this appeal is whether possession or the right to immediate possession is required to maintain an action for partition of real estate. IC 1971, 32-4-5-1 (Burns Code Ed.), provides, in pertinent part, as follows:

"Any person holding lands as joint tenant or tenant-incommon, whether in his own right or as executor or trustee, may compel partition thereof in the manner provided in this act [32-4-5-1 -- 32-4-5-23]."

Appellant contends that such statute has no limitations requiring possession or the right to possession before a partition action may be maintained, but that such action may be maintained by a person holding title only. Appellant further asserts that the phrase "holding lands" has been interpreted as the equivalent of "owning or having title to lands." Appellant then contends that such statute abrogated the common-law rules requiring possession before maintaining a partition action. Finally, appellant contends that IC 1971, 32-4-6-1 (Burns Code Ed.), is inapplicable to the case at bar and does not affect appellant's rights under IC 1971, 32-4-5-1, supra.

The common-law rule required the plaintiff seeking partition to have both title and possession or the right to possession. In Helvey et ux. v. O'Neill (1972), 153 Ind. App. 635, at 641-42, 288 N.E.2d 553, at 557, it was stated that the statute retained the right to possession requirement of the common law. More specifically, the court stated:

"Without reference to possession, this statute [IC 1971, 32-4-5-1 (Burns Code Ed.)] specifies that any person who holds land as a tenant in common may seek a partition. Both the cases decided prior and subsequent to the adoption of § 3-2401 [32-4-5-1, supra ] have generally held that in order to maintain an action for partition, either legal or equitable title and the 'right' to possession must be in the party maintaining the action. McClure v. Raber (1939), 106 Ind. App. 359, 19 N.E.2d 891; Schori v. Stephens (1878), 62 Ind. 441; Godfrey v. Godfrey (1861), 17 Ind. 6; Weaver v. Gray (1906), 37 Ind. App. 35, 76 N.E. 795; Brunner v. Terman (1971), 150 Ind. App. 139 275 N.E.2d 553. But the person seeking partition need not be in actual possession of the land so long as he has title and the 'right' to possession. Godfrey v. Godfrey, supra; Shetterly v. Axt (1906), 37 Ind. App. 687, 76 N.E. 901; Smith v. Andrew (1912), 50 Ind. App. 602 98 N.E. 734; Coquillard v. Coquillard (1916), 62 Ind. App. 489, 113 N.E. 481." (Emphasis added in part.)

Consequently, the right to possession has generally been required even though the statute does not specifically refer to possession.

Appellant relies on Myers v. Brane (1944), 115 Ind. App. 144, 57 N.E.2d 549, for the proposition that the right to compel partition is an absolute right which may be asserted even though part of the land is subject to a life estate. Appellant further notes that the court did not discuss possession as a requirement. In Myers, Edna Brane and one Fannie Hollowell owned certain farm land as tenants in common. Hollowell died, devising her undivided one-half interest in such real estate to Quimba Hollowell and Conchita Myers, subject to a life estate in her husband Abner Hollowell. In affirming the judgment of the trial court, it was noted that Brane acquired her interest to the real estate independently of Fannie Hollowell's

will, and while Fannie Hollowell was still alive. Thus the court concluded that Brane came within the provisions of IC 1971, 32-4-5-1, supra, and her right to partition was in no way curtailed by the existence of the life estate on part of the land. While at first blush this provides support for appellant's contention, a closer examination reveals that the court's statement was not intended to apply to situations such as presented in the case at bar.

In permitting the partition action, the court reasoned that since Brane could have maintained such action during Fannie Hollowell's lifetime, she could not be deprived of such right through a testamentary Disposition by Fannie Hollowell. Furthermore, it must be borne in mind that Brane owned an undivided interest in fee and therefore had an immediate right to possession. Consequently it is clear that the decision did not give a remainderman the right to partition land which is subject to a lif estate, but was intended to permit a fee owner of an undivided interest to partition land regardless of the other fee owner's Disposition of his own interest.

Appellant also contends that the phrase "holding lands" as used in a predecessor statute was interpreted in Godfrey v. Godfrey (1861), 17 Ind. 6, to require legal title only and not possession. However, a close examination of this decision and of Shetterly v. Axt (1906), 37 Ind. App. 687, 76 N.E. 901, which appellant relies upon for the proposition that possession is not necessary in a partition action, discloses that possession was not dispensed with as a requirement.

In Shetterly v. Axt, supra, the court did state that one seeking partition need not be in possession of the lands in order to partition the real estate. However, on rehearing, the court noted that the complaint alleged title and implied the right of possession. Consequently, it is clear that the person seeking partition must have title and the right to possession, ...

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