garded as ancestral property, and will pass as such under the statute of descent and distribution." But where the partition is made by the court, and the real estate is sold by the sheriff, the ancestral quality of the estate is broken. And a party electing to take the property at its appraisement, takes his own share as ancestral property and the shares of the others by purchase." As the courts of this State are not concerned with the question of ancestral property, as in the cases just cited, the question here is brought up only for the purpose of showing that partition does not create any new titles; for the proceeding operates upon the possession; dissolves the unity before existing and enables each of the owners to know, possess and enjoy his own share of the common estate in severalty. This construction preserves all the analogies of the law, and is fully sustained by the adjudged cases. It is well settled that such a proceeding does not decide title or create any new title. It merely dissolves the tenancy in common and leaves the title as it was, except to locate such rights as the parties may have, respectively, in distinct parts of the premises, and to extinguish it in all others. Sec. 1202. Construction of partition by mutual releases. When partition is made by mutual releases they should be made and construed together in the light of the circumstances attending their execution, and it is competent to show their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deed." • Carter v. Day, 29 O. S. 96. 7 Freeman v. Allen, 17 O. S. 527. 8 Tabler v. Wiseman, 2 O. S. 208; Goundie v. Northampton, 7 Barr, 278; McClure v. McClure, 2 Harris, 137; Bonner v. Proprietors, 7 Mass. 475; Wills v. Price, 9 Mass. 508; Brownell V. Brownell, 19 Wend. 367; Clapp v. Bromagham, 9 Carter v. Day, 59 O. S. 96; White v. Brocow, 14 O. S. 339; Dawson v. Lawrence, 13 Ohio, 544. Where land is purchased with an undivided fund in which the parent has a life estate and the children a remainder, and a conveyance is made to the former, the title will be held in trust for the latter, subject to the life estate; and upon the termination of the life estate they will hold the equitable title as tenants in common in the proportion of their respective shares in the fund, and such tenants in common are entitled to partition.10 Sec. 1203. Remainderman or reversioner cannot have partition-The exception to this rule. The result of the adjudged cases, as well as the purpose of the partition statute, and the object of the whole proceeding seem to be to secure to the tenant the exclusive possession of his share of the joint property; and where no such possession can follow the judgment, no reason is shown for invoking the aid of the law, or calling the other owners into court, and subjecting them to the expense incident to the proceeding, much less to compel them to submit to a forced sale of their interest, under circumstances which can hardly fail to result in a sacrifice. Before this can be done, the applicant must show that he is submitting to the inconvenience of joint possession, and that to protect him in the actual enjoyment of what belongs to him, it is necessary to interfere with the rights and interests of his cotenants. Until this is shown, there is no joint possession to sever, and, consequently, nothing upon which the judgment of the court can legitimately operate. The primary object of the partition statute is to effect an actual division of the property among the owners, and it is only where this cannot be done without manifest injury to the value thereof, that election or sale is allowed. In making such division the commissioners are to have due regard to the improvements, situation and quality of the different parts of the estate, and this is to be done on actual view. A large part of its value may then 10 Roberts v. Remy, 56 O. S. 249. consist of buildings or other improvements, which, before the expiration of the life estate, may be entirely destroyed or become comparatively valueless. If, instead of the comparative certainty which this section enjoins, the commissioners were permitted to speculate on its probable condition at the termination of the life estate, the blindest conjecture would, unavoidably be substituted, and the chances of equitable division much diminished.11 But one who owns in fee simple an undivided half interest in real estate can sue to compel partition as against his cotenants who have only a life interest in the other undivided half.12 Sec. 1204. Heirs may not have partition of homestead occupied by wife and family. Where a homestead is, by order of the probate court, set aside to the use of the wife and family of a deceased husband, the same cannot be partitioned at the suit of some on the adult heirs. The courts of other States having a homestead law similar to ours have so held.13 11 Fritz v. Fritz, 16 O. S. 218; Stevens v. Enders, 1 Green's N. J. R. 271; Brown v. Brown, 8 N. H. 93; Striker v. Mott, 2 Paige, 389; Wood v. Clute, 1 Sand. Chy. Rep. 202; Hieatt v. Black, 14 C. C. (Ohio), 194; Tabler v. Wiseman, 2 O. S. 208. The owners of a fee subject to a life estate may divide the land in severalty before the termination of the life estate, and on such partition the former cotenancy of the fee is at an end, and each owner may then take title to the life estate in his own portion, and hold the entire estate adversely to the other. McCullough v. Finley, 69 Kan. 705, 77 Pac. 696. 12 Johnson v. Brown, 74 Kan. 346, 86 Pac. 503; Kinkead v. Maxwell, 75 Kan. 50, 38 Pac. 523. 13 Funk v. Baker, 21 Okla. 402, 96 Pac. 608; Fore v. Fore, 2 N. D. 260, 50 N. W. 712; Nicholas v. Purezell, 21 Ia. 256, 89 Am. Dec. 572; 21 Cyc. 594; 15 Am. & Eng. Ency. of Law, 699. Where the head of a family dies leaving children, some of whom are minors who occupy the homestead, it cannot be partitioned against their objection until they become of age. Rowe v. Rowe, 61 Kan. 802, 60 Pac. 1,049; Hofer v. Hofer, 33 Kan. 449, 6 Pac. 537. Even in case where the homestead of a deceased husband, while occupied by the surviving wife as a homestead for herself and family, it cannot be partitioned by an adult heir.14 14 Sec. 1205. The real estate must be described in the petition to partition. When the object of an action is to effect the partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known.* Sec. 1206. The power of a general guardian in partition cases. The guardian of a ward has statutory power to join in and assent to the partition of real estate of the ward, whenever such assent may be given by any person.15 Sec. 1207. Allegation as to unknown owners-Creditors as parties. If the number of shares or interests is known, and the owners thereof are unknown, or if there are, or are supposed to be any interests which are unknown, contingent or doubtful, these facts must be set forth in the petition with reasonable certainty.10 Creditors having a specific or general lien on all or any portion of the property, may be made parties." 14 Miller v. Hassman, 24 Okla. 381, 103 Pac. 577. * Snyder, 6,135; Wilson, 4,801; Kansas, 5,101 (1901), identical; Nebraska, 1,750 (1907). A petition for partition, the allegations of which bring the case within the reason of the code requiring the interests of the owners to be described by setting forth the conveyances from which the interests of the several parties appear, is not demurrable because it fails to allege in terms the respective interests of the owners. Johnson v. Brown, 74 Kan. 346, 86 Pac. 503. 17 15 Snyder, 5,493; Wilson, 1,835; Sec. 6,004, Dakota Code (1887). 16 Snyder, 6,136; Wilson, 4,803; Kansas, 4,718 (1889), identical. 17 Snyder, 6,137; Wilson, 4,803; Kansas, 5,103 (1901), identical. In an action between the heirs of a decedent to partition his real estate, the general creditors are not proper parties and the administrator should be joined under exceptional circumstances. Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245. Sec. 1208. The allegations of the answer. The answer of defendants must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs or any of the defendants.18 Sec. 1209. The allegations of the petition where the executor or administrator has charge of the estate. Where an executor or administrator has been appointed for the estate, the petition should allege, and the evidence should show that the decedent left sufficient personal property to pay all debts, including costs of administering his estate.19 Sec. 1210. The causes of action that may be joined with partition. In the action in partition it is not necessary, as in some jurisdictions, to allege that plaintiff is in possession of the real estate to be partitioned. He may allege that he is not in possession and that someone is holding it adversely to him. He may unite in his petition a cause of action for the recovery of the real estate, a cause of action for the rents and profits and a cause of action for the partition thereof.20 Sec. 1211. Sale in partition where real estate is encumbered by lien. As shown above, the statute authorizes anyone holding a lien of any kind on real estate sought to be partitioned, to be made parties defendant. Where the property sought to be 18 Snyder, 6,138; Wilson, 4,804; Kansas, 4,720 (1889). 19 Sample v. Sample, 34 Kan. 73, 8 Pac. 248; O'Keefe v. Behrens, 73 Kan. 460, 85 Pac. 555. 20 Scarborough v. Smith, 18 Kan. 399. A joint tenant, or tenant in common, out of possession, cannot bring suit for partition against his cotenants holding adversely, without joining with the demand for partition a cause of action for possession. Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1,074; Moorhead v. Robinson, 68 Kan. 534, 75 Pac. 603. One out of possession cannot maintain partition for real property against one in possession claiming |