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Wood v. Sugg.

and on each renewal the reduced per centum is allowed. Very manifestly the scope of the agreement conferring the authority is to provide the measure of remuneration for what the agent may do while he remains such and no further. He was not to be paid for renewals afterward made unless participated in by him while in possession of authority to renew. Although renewals are the consequence of the original contract of insurance, and in this particular beneficial to the company, yet the full compensation given and accepted for this service is the twenty-five per centum on the sum received, provided in the contract which creates the agency and regulates its terms. This is in our opinion a fair and reasonable interpretation of the instrument, and the result is adverse to the counter-claim.

It must be declared there is no error in the ruling and the judgment must be affirmed.

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PARTITI

Partition cannot be had of an estate in remainder.

ARTITION. The opinion states the case. The defendant had judgment below.

Faircloth & Allen and George M. Lindsay, for plaintiffs.

H. F. Murray and W. C. Munroe, for defendant.

ASHE, J. [Omitting other points.] The defendant Sugg, by means of the several conveyances set forth in the record, became the owner of her life estate, and by purchasing the interest of two of the four heirs of Jonathan Wood, he became, by the merger of a moiety of the life estate of his two undivided shares of the remainder, the owner in fee simple of an undivided half of the land, and the owner of an estate for the life of Emily J. Wood in the

Wood v. Sugg.

other moiety owned by the plaintiffs. In other words, the defendant is the owner of one moiety in fee simple, and the plaintiffs are the owners of a moiety of the remainder.

At the common law, parceners only were compellable to make partition by a writ of partition, but the benefit of that writ was extended to joint tenants and tenants in common by the statute of 31 and 32 Henry VIII. By the former statute, none but tenants of the freehold who had estates of inheritance could have partition, and only against tenants of the freehold. By the latter, tenants for life or years might have partition, but not to affect the reversioner or remainderman. The essential provisions of these statutes are still in force in this State, with only a modification of the remedy. In 1787 an act was passed by the general assembly which gave to tenants in common of real estate the petition for partition, in place of the ancient writ of partition. Act 1787, chap. 274, § 1 (brought forward in the Revised Statutes and Revised Code). The construction put upon this statute is, that it applied only to such co-tenants as had seisin where the estate was freehold, but had no application to reversioners or remaindermen. Maxwell v. Maxwell, 8 Ired. Eq. 25; Hassell v. Mizell, 6 id. 392. And in so holding this court has followed the English decisions in construing the statute of Henry VIII. Our act of 1787 has made no change in the principles of law applicable to partition, but has only changed the remedy.

Mr. Freeman, in his work on Co-tenancy, says: It is a general rule prevailing in England without exception, and also throughout a majority of the United States, that no person has the right to demand any court to enforce a compulsory partition, unless he has an estate in possession; one by virtue of which he is entitled to enjoy the present rents or the possession of the property as one of the co-tenants thereof. § 446. The same doctrine is announced and maintained in 1 Washb. Real Property, chap. 13, § 7, sub-div. 7.

In New York it has been held that proceedings in partition can be instituted only by a party who has an estate entitling him to immediate possession. Brownell v. Brownell, 19 Wend. 367. See also Miller, Ex parte, 90 N. C. 625.

In New Hampshire it is held: "To maintain a proceeding for partition the applicant must show a present right of possession." 36 N. H. 327. And again, that "one who is interested with others in a remainder or reversion, after an estate of freehold, cannot main

Baity v. Cranfill.

tain a petition for partition of the lands in which he is so interested." 8 N. H. 93.

We might multiply authorities, but we deem those cited are sufficient to show that the principle is well established, that cotenants in remainder or reversion have no right to enforce a compulsory partition of land in which they have such estate.

We are of opinion there is no error in the judgment of the Supreme Court.

No error.

Affirmed.

BAITY V. Cranfill.

(91 N. C. 293.)

Constitutional law-regulation of marriage-retrospective operation.

A statute prohibited marriage between persons nearer of kin than first cousins, and a subsequent statute provided that such marriage followed by birth of issue should not be declared void after the death of either party. Held, that the proviso applied to prior marriages.

ROCEEDING to sell land of an intestate. The opinion states the case. The defendant had judgment below.

PROCE

Watson & Glenn and J. A. Williamson, for plaintiff

J. M. McCorkle and E. L. Gaither, for defendant.

SMITH, C. J. The defendant is a son by a former wife of the plaintiff's intestate, who after her death intermarried with Mahala Triett, his niece, on the 26th day of November, 1869, and lived with her in the relation of husband and wife until his own death, in the year 1873. The issue of their marriage were two children, of whom one died before and the other (bearing his father's name) after the institution of the present suit.

After the grant of letters of administration to the plaintiff upon the intestate's estate, the said Mahala, as his surviving widow, made application and had assigned to her in due course of law her year's allowance, almost entirely in specific articles, with a small sum to be paid in money for the deficiency which passed into her possesVOL. XLIX-81

Baity v. Cranfill.

sion and absorbs the personal estate. She also instituted her action against the defendant Elkana and the son Levi, the heirs at law of the deceased husband, under and pursuant to which her dower was allotted and assigned in his descended lands. The defendants made no resistance to the claim of dower or the assignment when made, and informed the Probate judge when he made the appointment of administrator that the said Mahala was the widow of the intestate and her child one of his next of kin.

The present action, now depending against the said Elkana alone as heir at law of the intestate, is to obtain an order of sale of the descended lands for the payment of debts of the decedent, and is opposed upon the ground that the marriage with said Mahala, because of their near relationship, was and remained void, and the delivery of the articles to her for her year's support under the assignment of the commissioners was a devastavit, for the value of which the plaintiff is personally responsible, and must account for and apply to the indebtedness before the lands can be sold for that purpose.

Two propositions are involved in the defense, and are necessary to its success, and these are:

1. The absolute and continued nullity of the marriage, and

2. The liability of the administrator for the loss of the personal estate adjudged to the widow. The law in force at the time when the marriage was solemnized is found in the Revised Code, chap. 68, section 9, and is in these words: "All marriages contracted after the twenty-seventh day of December, eighteen hundred and fifty-two, and all marriages in future between persons nearer of kin than first cousins, shall be void."

These and marriages contracted between a white person and a free person of color to the third generation, are the only marriages prohibited and made void by express statutory provisions, other causes of nullity being left to operate as at common law.

The legislation contained in this chapter is superseded by the enactment of February 12, 1872, to be found in Bat. Rev., chap. 69, the second section of which defines the impediments in the way of a lawful and valid marriage, among them being a marriage "between any two persons nearer of kin than first cousins," and declares such to be void, subject to a proviso subjoined as follows:

Provided that no marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the par

Baity v. Cranfill.

ties for any of the causes stated in this section, except for that one of the parties was a white person and the other a negro or Indian, or of negro or Indian descent to the third generation inclusive, and for bigamy.

Section 2 of chapter 37 of Bat. Rev., confers upon the superior courts jurisdiction in term time of marriages contracted contrary to the prohibition in section two of chapter 69, or therein declared void, to declare and adjudge "such marriage void from the beginning, subject nevertheless to the provision contained in said section," and already recited.

The succeeding section declares that the marriages interdicted between a white person and one of negro or Indian blood within the degree specified, "shall be absolutely void to all intents and purposes and shall be so held and declared by every court at all times whether during the lives or after the death of the parties thereto." Bat. Rev., chap. 37, sections 2 and and 3.

Again the general assembly further amended the law by extending the inhibition arising from kinship to those of half blood, but with a proviso that this shall not invalidate a marriage theretofore contracted, and that the computation as to existing marriages shall be by counting relations of the half blood as being only half so near kin as those of the same degree of the whole blood. 1879, chap. 78.

Acts

These statutory provisions are referred to, as indicating, as in our opinion they clearly do, an intention to confine the power conferred upon the court to declare void, or in a judicial proceeding to treat as void, except where the inter-marriage is between the specified races or involves the offense of bigamy, to cases, whenever the power is exercised, during the life-time of the parties, or after death, only when there has been no issue born to them. The structure and interdependence of these several sections are in harmony only when such an interpretation is put upon the proviso first quoted.

It speaks prospectively as to the exercise of the judicial authority bestowed, but it is an authority to be exercised upon all subsisting marriages before specified, when the relation may have been entered into, as well as such as may thereafter be formed. The words are "that no marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section, except," etc., thus imposing restraints after death not attaching during life.

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