Hughes v. Hughes. whole could not be deprived of his present positive rights, and another status- that is, a gross sum-be substituted without his assent. But, without considering the question on principle, it seems to me the question has been fully disposed of by the court of last resort. Blakeley v. Calder (15 N. Y., 617), has been cited and relied on by the plaintiff. In that case all parties, including the life-tenant, had united in the partition suit and the decree, and asked its enforcement; and the party objecting was the purchaser. Whether, as matter of principle, that should make a change is not necessary to discuss, because the court there held it did, and put its decision on such assent, and the result was merely to hold that the purchaser could not raise the question. In Howell v. Mills (56 N. Y., 226), cited by plaintiff, the court puts its decision solely on the ground that no exception brought up the question, and there was nothing before it but the question of jurisdiction, and, as the supreme court had jurisdiction, the court of appeals had no means of ascertaining whether error had, been committed in the decision. No exception brought up any erroneous ruling. In Sullivan v. Sullivan (66 N. Y., 37), it seems to me the very question raised is disposed of. The court there say that, "We think it too well settled by authority, as well as upon principle, that a remainderman cannot, as against others not seized of a like estate in common with him, maintain the action to disturb the rule. If the action should be extended and the benefit given to other parties, it must be done by legislation." [2] And this brings us to the question of whether legislation has changed the law on the subject. No suggestion is made anywhere that the amendment to the Code was intended to change the law. That radical Hughes v. Hughes. change, if intended, would have been stated, and the intent made plain. The words of the section of the Code seem to me to intend simply to codify what [] the law was, and not to change it. The plaintiffs' counsel admits, in his brief, that the court should, on request, order the premises sold subject to the life estate, and subject to the life tenant's rights. Such a. sale would be a gross injustice to the infant and those not consenting. No such sale could produce a fair and open competition for the lands, as no buyer would desire to purchase such an estate, and its effect would only be to declare the plaintiffs' rights, which are already admitted. I do not feel disposed, without some clear law shows the intent to change, to hold that the rights of a life tenant can be thus interfered with, or be subjected to useless litigation; and must hold, until the higher courts change the rule, that the action will not lie. In Morse v. Morse, while this exact case is not before the court, the following language is used (85 N. Y., 53, 57): "Unless he took under the will a present estate in possession, in the premises in question, he cannot maintain this action." And for this the court cite Sullivan v. Sullivan, without disapproval, but as being the law. The case of Morse v. Morse does not, as stated, raise the exact point in this case, but the court affirm the doctrine that to entitle the remainderman to the remedy there must be a present estate in possession.* *The precise claim of plaintiff's in Morse v. Morse (85 N. Y. 53, a case which arose under the R. S., although decided in 1881), was, as set forth at page 58 of that case, that they "took upon the testator's death, a present legal estate in the farm as tenants in common, subject to a bare power of sale vested in the executor," and that they might, therefore, maintain an action for partition. While it may be conceded that joint tenants and tenants in common cannot maintain an action for partition unless they are in possession, actual or constructive (3 R. S. 317, § 1; Code of Civ. Pro. § 1532; Sulli Hughes. Hughes. Here the estate in possession is with the tenant for life, and cannot be disturbed by one whose title to possession arises only on the death of the present possessor. Judgment for defendants. van v. Sullivan, 66 N. Y. 37, limiting and distinguishing Blakeley v. Calder, 15 N. Y. 617, affirming 13 How. 476, and also distinguishing Howell v. Mills, 56 N. Y. 226; Morse v. Morse, 85 N. Y. 53; Florence v. Hopkins, 46 N. Y. 182; Van Schuyver v. Mulford, 59 N. Y. 426, 430; Howell v. Mills, 7 Lans. 193; Therasson v. White, 52 How. 62; Stewart o. Munroe, 56 How. 193), so far as the last paragraph of the opinion in Hughes v. Hughes, supra, may admit of the broad construction that an action for partition cannot be maintained by joint tenants or tenants in common of a vested remainder or reversion, even among themselves, because such tenants are not in possession, it would seem to be open to question. Section 1533 does not require such plaintiffs to be in possession, and necessarily contemplates the existence of a precedent estate. That a remainderman has neither actual nor constructive possession, but simply an estate to vest in possession in futuro, was one of the grounds upon which the right to maintain an action of partition, at least as against others not seized of a like estate in common with him, was denied to the remainderman in Sullivan v. Sullivan, 66 N. Y. 37; and see the cases for and against the right of a remainderman to maintain an action for partition, cited in the extract from Mr. Throop's preliminary note to Article 2 of Title 1 of Chapter XIV, ante, p. 100. But whatever doubt may have previously existed, the Code now expressly permits an action for partition to be maintained by such plaintiffs. It does not, however, pretend to change the character of their estates; and, at least when the particular estate is of, freehold, there is no possession or right of possession in the remainderman, even within the case of Jenkins v. Fahey, 73 N. Y. 355, 362–364. The fair import of the opinion on this point would, however, seem to be, that the remainderman could not maintain the action as against the owners of the particular estate, because they were not siezed of a like estate in common with him- his being a present estate in possession, and theirs being an estate to vest in possession in futuro· that the action should have been confined to the remainderman, and the owner of the particular estate should not have been made a party. Nehrboss v. Bliss. NEHRBOSS ET AL., APPELLANTS, . BLISS AND ANOTHER, RESPONDENTS. COURT OF APPEALS; MARCII, 1882. SS 1464, 1466. Redemption of real property sold under execution.-Redemption by surviving member of partnership, as a creditor by judgment.—Delivery of what papers, by such survivor, sufficient.-Not necessary for such survivor to deliver any asssignment of the judgment to himself.-If surviv- representative. Upon the death of one of two mem bers of a partnership, what vests in the survivor. Upon the death of one of two members of a firm, the legal right, under the firm contracts or causes of action, and the sole right to collect the partnership debts, remain in the survivor, and are vested so effectually that, upon the death of the survivor, they devolve upon his personal representative, and he alone could sue thereon. [2] Where the surviving member of a partnership recovered judgment, as such survivor, and in proceedings to redeem, as a creditor by judgment, the real property of his judgment debtor sold under execution, delivered to the sheriff as evidence of his right to redeem and as a compliance with the requirements of section 1464 of the Code, a duly certified copy of the docket of his judgment, wherein the judgment was described as having been recovered by "Seth P. Bliss, as survivor of himself and Jerome Pierce, deceased," as plaintiff, and an affidavit attached to said docket, which set forth that, "Seth P. Bliss being duly sworn, says that he is the owner and holder of the judgment mentioned in the foregoing copy of the docket of judgment," and then proceeded to state the sum remaining unpaid upon the judgment at the time of claiming the right to redeem, but he did not deliver to the sheriff any assignment of such judgment to himself,-Held, that although the action was in the name of Bliss as survivor, it was his own, and that he had the legal title to the judgment as much as if the cause of action had stood in his own right, and, therefore, it was not necessary for him as redeeming creditor to present any assignment of the judgment to himself, or to add to the statement in the affidavit any words, showing his identity with the judgment creditor; that he was in law the owner of the judgment, and appeared to be so upon the face of the papers.['] ['] It seems, that if Bliss had died after the recovery of his judgment and Nehrboss v. Bliss. before redemption, his executor or administrator could have redeemed under section 1466 of the Code. [3] Proceedings for the redemption of real property sold under execution are statutory, and words cannot, for any purpose, be added to, or omitted from, the statute, and its language is to be construed strictly.['] (Decided April 11, 1882.) Appeal by plaintiffs from an order of the general term, fourth department, reversing a judgment in favor of the plaintiffs, entered upon the report of a referee, and granting a new trial. This action was brought against Seth P. Bliss and the sheriff of Niagara county to set aside a deed of certain premises situate in the county of Niagara, made by the said sheriff to the said Bliss as a redeeming creditor by judgment, and to require such sheriff to convey the premises to the plaintiffs. The facts of the case, so far as they are necessary to an understanding of the questions here decided, may be stated as follows: In December, 1873, Donald Bain and Michael Shaler recovered two judgments of $500.88 each against John Batt and Xavier Batt; and on March 12, 1879, the sheriff of Niagara county, upon executions issued on these judgments, sold at public auction. the premises in question to John Nehrboss (the original plaintiff in this action, since deceased, and for whom the present plaintiffs were substituted), for the sum of $1,413.23, and executed and delivered to him a certificate of sale. In May, 1879, the defendant Bliss, as survivor of himself and Jerome Pierce, deceased, recovered, in the supreme court, Erie county, a judgment for the sum of $2,880.39, and a transcript of this judgment was filed and the judgment docketed in Niagara county on May 12, 1879. On May 12, 1880, the defendant Bliss applied to the sheriff of Niagara county to redeem the premises sold as aforesaid, and delivered to him a certificate of |