Knight v. Knight

Citations

• 10 Del. Ch. 304
• 89 A. 595
• 1914 Del. Ch. LEXIS 18

Syllabus

<p>In order to create a right to partition of land, there must be a co-tenancy between two or more persons, holding under a title equivalent to a freehold, one of the essential features of which is possession.</p> <p>A tenant in common cannot maintain a suit for involuntary partition, where he has been disseized by his co-tenant and is therefore not in possession; a subsisting adverse possession, irrespective of its duration, being a bar to partition.</p> <p>Ejectment will lie by a tenant against his co-tenant.</p> <p>As between tenants in common or joint tenants, proof of ouster of one of them by the other must be stronger than between strangers, because the possession of one is the possession of the other.</p> <p>A defendant in a partition cause who denies the tenancy in common must allege the facts relied on to show his possession adverse to the other alleged co-tenant.</p> <p>Where, in a suit for partition, it appeared that complainant was not in possession, and defendant’s answer alleged that he was in actual possession, asserting exclusive ownership, such fact does not necessarily require dismissal, but the court may retain jurisdiction until complainant has had a reasonable time to establish his title at‘law, especially where the answer does not show the basis of defendant’s claim of title, or his hostile possession, so as to show that there was a real controversy with reference to defendant’s adverse possession, which could not be tried in a court of equity.</p>