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Home > Journals > Michigan Law Review > MLR > Volume 28 > Issue 2 (1929)

 

LIFE TENANT-RIGHT TO PARTITION OR SALE OF LAND AGAINST REMAINDERMAN

Abstract

Where property is left to one for life with remainder over to another, a situation may arise which makes it highly desirable that the land be sold and the proceeds reinvested. The right of the life tenant to compel such sale might conceivably be based upon either of two theories. The life tenant might be allowed this remedy as a matter of right just as co-tenants are allowed partition as a matter of right. Indeed, the analogy to partition is rather obvious and it is not surprising to find a large number of cases in which the life tenant has sought the desired relief in an action for partition. However, the action of partition as it has been developed is only permitted between persons having a right to possession of the same property at the same time. The primary purpose of partition is to divide the land not to sell it, and it is only where physical partition is impracticable that the courts resort to a sale of the land. The relief sought by the life tenant always requires a sale of the land, as the life tenant can get no more complete or exclusive possession than he already has. Although the fact that the life tenant's situation is not identical with that of a co-tenant should not alone be a reason for denying the right, there do exist substantial objections to allowing a right of sale to a life tenant as a matter of course. A sale would in many cases run counter to the purpose of the creator of the estates. Moreover, it would be possible for the life tenant to cause a serious loss to a remainderman by compelling the latter to part with his interest in land which might greatly increase in value before the death of the life tenant. If the life tenant could compel a sale, why should not the remainderman have the same right? But this also might result in much unfairness; for example, the remainderman might compel the aged widow of the testator to give up possession of the homestead.

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