"If a complete partition be desired, all parties in interest may be brought before the court, and all estates, 439 whether in possession or expectancy, including those of infants and all persons not in esse, may be bound by the decree': Gayle v. Johnston, 80 Ala. 395, and authorities there cited.

In McQueen v. Turner, 91 Ala. 273, 8 South. 863, it is said: "Partition is a matter of right, and is authorized by the statute among joint owners, or tenants in common holding the lands, without reference to the duration of the es

It may be compelled as well against a life tenant as obtained at his suit. The statute confers on the chancery court concurrent jurisdiction with the probate court to divide or partition, or to sell for division or partition, any property, real, personal or mixed, held by joint owners or tenants in common. By authority of the statute, the chancery court may, in all cases in which the party asking for partition is entitled, decree a sale and divide the proceeds when the property cannot be equitably divided." It is also held in that case that a remainderman's interest in the property may be bound by the decree, and may be preserved to him by securing his share of the proceeds at the termination of the particular estate, by requiring bond and security before turning it over to the life tenant. The remedy in equity by partition, says Mr. Pomeroy, "is not confined to the tenants in possession, but extends to all persons interested, whether presently or in expectancy, and remaindermen, reversioners, infants and person not in esse may be bound by the decree": 4 Pomeroy's Equity, 3d ed., sec. 1387, and cases cited in note 1.

Under these principles the bill clearly has equity and the decree dismissing it must be reversed.

The respective rights of the respondents as remaindermen, under the will of Craddock in the property sought to be sold, as between themselves, are not involved on this appeal. Therefore, a construction of the will to the end of ascertaining which of them are remaindermen and the character of the estate devised in remainder is wholly

unnecessary.

Suffice it to say that the averments of the bill clearly show that complainant has an interest in the property, and the extent of that interest, and that a remainder interest belongs to some one of the respondents.

440 A decree will be here entered reversing the decree appealed from and overruling the motion to dismiss the bill. Reversed and rendered.

Simpson, Anderson and Denson, JJ., concurring.

THE PARTITION OF ESTATES HELD IN REVERSION OR RE

MAINDER.

I. The Common-law Rule, 55.

II. Classification, 55.

III. Cases in Which Nothing but the Estate in Reversion or Remainder is Sought to be Partitioned, 55.

IV. Where the Proceeding is Brought by a Cotenant of an Estate in Possession, 56.

V. Where the Party Seeking Partition Has an Estate in Fee, 57.

I. The Common-law Rule.

The remedy by suit for partition was doubtless devised solely for the relief of persons in possession or entitled to be in possession of the property. As to persons having estates in remainder, they were not entitled to be in possession, and no partition of their interests could have been had, of any practical effect, unless by sale. It was a rule both at common law and in chancery that none but estates in possession were subject to compulsory partition: Evans v. Bagshaw, 39 L. J. Ch. 145, L. R. 5 Ch. 340, 18 Week. Rep. 657. This rule prevails in the greater number of the United States, but it has in some of them been modified or abrogated by statute.

II. Classification.

The question of the right to partition an estate in reversion or remainder may be considered, first, when such partition is sought without undertaking to affect the estate in possession; second, when a reversioner or remainderman seeks a partition which will also include the estate in possession; third, when a cotenant of an estate in possession seeks partition which will include both it and the estate in reversion or remainder; and fourth, when a cotenant of the fee seeks a partition which will include all other estates whether in possession or not.

III. Cases in Which Nothing but the Estate in Reversion or Remainder is Sought to be Partitioned.

Doubtless in chancery, at the common law and also under the rules prescribed by the statutes in the greater portion of the United States, neither an action nor a suit for partition can be sustained where the estate involved is not one in possession, but is either in reversion or remainder: Culver v. Culver, 2 Root, 278; Schori v. Stephens, 62 Ind. 441; Stout v. Dunning, 72 Ind. 343; Packard v. Packard, 16 Pick.

191; Hunnewell v. Taylor, 60 Mass. 472; Center v. Herschel, 24 Nev. 152, 50 Pac. 851; Brown v. Brown, 8 N. H. 93; In re Burroughs, 13 N. J. L. 284; Stevens v. Enders, 13 N. J. L. 271; Reeves v. Reeves, 6 N. J. Eq. 156; Maxwell v. Goetschius, 40 N. J. L. 383, 29 Am. Rep. 242; Sullivan v. Sullivan, 66 N. Y. 37; Hughes v. Hughes, 63 How Pr. 408, 30 Hun, 349; Tabler v. Wiseman, 2 Ohio St. 207; Savage v. Savage, 19 Or. 112, 20 Am. St. Rep. 795, 23 Pac. 890; Ziegler v. Grim, 6 Watts, 106; Robertson v. Robertson, 32 Tenn. (2 Swan) 197; Norment's Admr. v. Wilson, 24 Tenn. (5 Humph.) 310; Baldwin v. Aldrich, 34 Vt. 526, 80 Am. Dec. 695; Merritt v. Hughes, 36 W. Va. 356, 15 S. E. 56; Croston v. Male, 56 W. Va. 205, 107 Am. St. Rep. 918, 49 S. E. 136; Pabst B. Co. v. Melms, 105 Wis. 441, 75 Am. St. Rep. 921, 81 N. W. 882; Moore v. Shannon, 6 Mackey, 157. In a few of the states, however, a partition is allowed among the reversioners or remaindermen confined solely to their estate and not assuming to affect the preceding estate in possession: Scoville v. Hilliard, 48 Ill. 453; Hilliard v. Scoville, 52 Ill. 449; Drake v. Merkle, 153 Ill. 318, 38 N. E. 654; Miller v. Lanning, 211 Ill. 620, 71 N. E. 1115; Cook v. Webb, 19 Minn. 167; Smalley v. Isaacson, 40 Minn. 450, 42 N. E. 352; Smith V. Gaines, 38 N. J. Eq. 65; Preston v. Brant, 96 Mo. 552, 10 S. W. 78; Hayes v. McReynolds, 144 Mo. 348, 46 S. W. 161; Aydlett v. Pendleton, 111 N. C. 28, 32 Am. St. Rep. 776, 16 S. E. 8; Witherspoon v. Dunlap, 1 McCord, 546. The right, though created and recognized by the statute of Illinois, cannot be exercised where the interests of the parties cannot be ascertained until after the death of the life tenant: Seymour v. Bowles, 172 Ill. 521, 50 N. E. 122. In New York, the right of a remainderman to partition (first affirmed: Bradshaw v. Callaghan, 8 Johns. 558; Woodworth v. Campbell, 5 Paige, 518; McGlone v. Goodwin, 3 Daly, 185; Blakeley v. Calder, 15 N. Y. 617, 13 How. Pr. 476; and subsequently denied: Sullivan v. Sullivan, 66 N. Y. 37; Hughes v. Hughes, 63 How. Pr. 408, 30 Hun, 349), was by statute extended to cotenants of vested reversions or remainders: Prior v. Hall, 13 Civ. Proc. R. 83; Havey v. Kelleher, 36 App. Div. 201, 56 N. Y. Supp. 889; Garvey v. Union T. Co., 29 App. Div. 513, 52 N. Y. Supp. 260. We believe no statute has yet conferred on a cotenant of an estate not in possession the right to compel a partition which will include and affect the estate in possession or any cotenant thereof: Alexander v. Alexander, 26 Neb. 68, 41 N. W. 1065.

IV. Where the Proceeding is Brought by a Cotenant of an Estate in Possession.

A cotenant of an estate in possession, though less than in fee, is generally, if not invariably, entitled to maintain a suit for partition, but his suit cannot affect estates in remainder or reversion unless specially authorized by statute: Smith v. Samuels, 97 Iowa, 55, 65 N. W. 1002; Love v. Blauw, 61 Kan. 496, 78 Am. St. Rep. 334, 59 Pac. 1059, 48 L. B. A. 257; Williams v. Hassell, 74 N. C. 434; Simpson v.

Wallace, 85 N. C. 477; Austin v. Rutland R. Co., 45 Vt. 215; Turner v. Barraud, 102 Va. 324, 46 S. E. 318. In a few of the states, as appears by the opinion in the principal case, such right has been created by statute, and therein a tenant of an estate in possession may compel a partition binding all interested, whether in possession, reversion or remainder: Gayle v. Johnston, 80 Ala. 395; McQueen v. Turner, 91 Ala. 273, 8 South. 863; Moody v. West, 12 Ind. 399; Sikemeier v. Galvin, 124 Mo. 367, 37 S. W. 551; Palethorp v. Palethorp, 194 Pa. 408, 45 Atl. 332; Carneal v. Lynch, 91 Va. 114, 20 S. E. 959.

V. Where the Party Seeking Partition Has An Estate in Fee. Where several persons are cotenants of the fee, and each, therefore, has the right to compel a partition, it would be unreasonable to hold that any of his cotenants, by creating an estate in reversion or remainder, could defeat the right to a complete partition which would vest a title in fee. The more difficult question is, where there are two cotenancies, one of the estate in possession and the other of an estate in reversion, whether a cotenant of either by acquiring a moiety of the other, and thus becoming an owner of a moiety in fee, may compel partition of both estates and thus acquire title in fee and in severalty. In some of the states he doubtless can: Hill v. Reno, 112 Ill. 154, 54 Am. Rep. 222; Aylesworth v. Crocker, 21 R. I. 436, 44 Atl. 308; Freeman v. Freeman, 56 Tenn. (9 Heisk.) 301. His right to do so is statutory, and, in the absence of statutes creating it, does not exist: In re Hodgkinson, 12 Pick. 374; Johnson v. Johnson, 7 Allen, 196, 83 Am. Dec. 676; Metcalfe v. Miller, 96 Mich. 459, 35 Am. St. Rep. 617, 56 N. W. 16; Belew v. Jones, 56 Miss. 342; Harding v. Craft, 21 App. Div. 139, 47 N. Y. Supp. 450; Baldwin v. Aldrich, 34 Vt. 526, 80 Am. Dec. 695; Pabst B. Co. v. Melms, 105 Wis. 441, 76 Am. St. Rep. 961, 81 N. W. 882. Of course partition may be made by suit where all the parties consent, though some of them might, from the nature of their estate, resist with success: Brillhart v. Mish, 96 Md. 447, 58 Atl. 28; Biddle v. Biddle, 117 Mich. 28, 75 N. W. 91; Bice v. Nixon, 34 W. Va. 107, 11 S. E. 1004.

ALABAMA INDUSTRIAL SCHOOL v. ADDLER.

[144 Ala. 555, 42 South. 116.]

ACTIONS Against State, What is.-A state industrial school, being a component part of one of the departments of the state, is within a constitutional prohibition against the state being made a party defendant to any suit. (p. 58.)

ACTIONS Against States-Waiver of Prohibition.—If the constitution contains a prohibition against the state being made a party defendant to any suit, and does not provide for any waiver of such exemption, the legislature has no power to pass a law permitting such waiver, nor can the state or its agent waive such exemption by failure to plead to the jurisdiction or otherwise. (p. 59.)

ACTIONS Against States-Void Judgment.-The supreme court will take cognizance of the lack of capacity of an inferior court to render a judgment in an action against the state expressly prohibited by the constitution, although no objection to the jurisdiction was made in the latter court. (p. 60.)

Whitson & Dryer and S. W. John, for the appellant.

Smith & Smith, for the appellee.

556 DENSON, J. Section 14 of article 1 of the constitution of 1901, which is a literal reproduction of section 15, article 1, of the constitution of 1875, expressly prohibits the state from being made a party defendant in any court of law or equity.

In the case of Alabama Girls' Industrial School v. Reynolds, in MS., we held that an action or suit against the defendant in this case (appellant here) is really and substantially one against the state, and that it is exempt under the constitution from all actions or suits.

Under the influence of the case above cited, the judgment rendered by the lower court against the defendant (appellant here) must be held void for want of jurisdiction in the court to hear and determine the cause, and the appeal must be dismissed, unless it can be properly held that there was a waiver by the defendant of its immunity from being sued.

The defendant appeared by counsel and, without making any objection to being sued and without in any way raising the question of the jurisdiction of the court, went to trial. on the plea of the general issue. If the defendant had been. a person, or a corporation liable to suit, by the course adopted by it, unquestionably the question of the jurisdiction