A LAND PARTITION CASE.

New Zealand Times, Volume LXXI, Issue 4312, 22 March 1901, Page 2

A LAND PARTITION CASE.

The Court of Appeal yesterday, oa the conclusion of , argument, delivered judgment in t,lio case Thomas Riddlcr and others, appellants, and William Dew, respondent. , Mr Ollivier appeared for the appellants, and Mr Hislop for the 'respondent.

The respondent Dew,' the plaintiff in I ho Court below, was'the tenailt in common in fee of an undivided moiety of. tho land in question, a property at Taita. He sought for partition. It was admitted that as tenant in common in fee he was properly a plaintiff in a suit for partition. But it was contended that there were no proper defendants in the present suit; because Dew, in addition to being tenant in common in foe of onfe moiety of the property, was also tenant for life of the other moiety. The. Chief Justice said that in his opinion the appellants had not been able to displace, the reasons given by the Court, below for-the judgment pronounced there. Put shortly, the argument on-behalf of the appellants -was that as none of the remaindermen was entitled to possession, there could ho no decree for partition. ‘ Here was a man who was entitled to a moiety of the estate in fee simple; he was entitled to the other mou, ety for life only. He washed to have a separation so that he might realise his-property.- And-Mr Ollivier said , that he could not be entitled to that because he had possession of the whole. The only suggestion that could he made here was that the remaindermen were not to be bound because they were not entitled to possession. If that proposition were to be applied by this Court, then the Court, would bp practically overruling the decision in : the case of Tnckfield v. Duller, and several other cases, and it would ho doing se practically without authority! What the appel- 1 fonts asked to bo declared was that urn less a per son-, was entitled to possession, a " decree ' for partition could' not be made. His Honor knew of no authority for that- proposition! iilt -was the desire of the Courts, to see that persons could reallyenjoy their property In his r ' Honor's opinion nothing ' had been shown, in'-argument for -the appellants .to. justify ttheir appeal.: .■.< <Ha, thought- the ‘judgment of, the Court .below,, was cor. relit; " ' ’ " . , ■ Mr Justice Williams said that -Dew sought;; not to hind himself; : but 'to bind the other persons interested in the estate—namely, the remaindermen, In his Honor’s opinion section 75 of the Property ‘ Xaw Consolidation Act enabled Inin- to do tliat. 1 It was .admitted that DeW''was‘ a person entitled to maintain the action. And the Act said that he*"might: maintain it against any one or; .mpre. pi;,' the parties interested, without.'ser.ving the'Other Or others. If a.remainderman could be -hound in a partition suit-r-and the cases wera conclusive to, show tl.iat, ho . could do.ro hound—there .was ho reason that his Honor-could, see why in a case like the present the Court should not bo able to bind the-remainderman.' .! v«-. Mr Justice-, Derinistou, ' Mr Justice Coriplly and 'Mr ‘Justice Cooper conenrrpd.. •, , . / ■ ~ ; .The appeal was'dismfosedwith costs on; the lowest scale. -, ,