34 mommy REPORTER. _
As was said by this court in Lamb v. Starr, 1 Deady, 364,- ·\
*‘ The jurisdiction of a court of equity over a suit for partition, so far as I
have been able to ascertain, never did depend upon the possession by the com-
plainant. Where the title of thekcomplainant, whether it be legal or equitable,
is not doubtful or suspicious, equity will take jurisdiction and decree_parti- .
tion, without reference to the question of possession; But in the case of an
alleged legal title, when either of these objections appear, it is usual, iirst, to
send the complainant to a court of law to try his title, and in the mean time
retain the bill to await the result. In the case of an equitable title, the court ·
of equity first ascertains the title, and, if found for the complainant, proceeds
to make partition." Wilkin v. Wilkin, ,1, Johns. Ch. 117; 002: v. Smith, 4
Johns. Ch. 276; Matthewsmz v. Johnson, Hoff. Ch. 562; 4 Kent, Comm. 364;
Phelps v. Green, 3 Johns; Ch. 304. V
` In this case the title is neither doubtful nor suspicious. The facts
‘ constituting the plaintiff’s rightare admitted, as are also the facts
which it is claimed constitute anadverse possession, suiiicient in
duration to bar the assertion ofrsuch right, and in effect to consti-
tute a title in the defendants. » x _
The only question to bc determined-—when did the statute com-
mence to run ?—is one of law, and may as well be decided in a court
· of equity as a court of law, for in either case the court must decide
~ it. On the contrary, if the question was one of fact,—as, for in-
stance, the duration or character of the defendant’s possession,--
and there appeared to be any doubt about it on the evidence, the
plaintiff might very properly be directed to try that question in a court
of law with a jury. But there can be no good reason for sending a.
plaintiif in a suit in equity for partition to a courtof law to try a
i mere question of law involved in his claim or the defense thereto,
particularly in modern times, when the two courts are composed of
` the same judges, and former rivalry and jealously between them has
become a thing of the past.
The adverse possession of the defendants not having continued 20
years after the statute of limitations commenced to run against the
plaintiffs or their ancestor, and before these suits were commenced,
. the pleas to the bills are considered insuiiicient and therefore over-
ruled.