delivered the opinion of the Court.
This is, in some respects at least, a remarkable case. The bill is filed under sec. 99, Art. 16 of the Code as amended by the Act of 1886, ch. 232, for the sale of two and one-half acres of land, because it cannot be divided in kind, without loss or injury to the parties in interest. The lot of ground is subject to a leasehold estate of ninety-nine years, renewable forever, upon the payment of an annual rent of six cents, which leasehold estate is held in trust for the use and benefit of the High German Lutheran Church in Baltimore City.
The inheritance subject to this leasehold interest, belongs to seventy-five persons, and is valued at $125. The lot is not, according to the proof, susceptible of partition without loss and injury to the parties in interest, and thereupon the Court decreed it should be sold. What advantage the owners of the inheritance are to derive from a sale, is not apparent, certainly upon the face of the record, for the costs of suit to the' date of the decree amount to $167.55, to which must be added commissions to the trustee, cost for advertis*5ing, recording, &c. So instead of bringing money into Court for distribution among the parties in interest, the proceeds of sale would be altogether insufficient to pay the costs of the proceeding. And then again, if the lot was divided into seventy-five parts, it would be impossible to divide the annual rent of six cents between seventy-jive persons. It does not "therefore seem to us that the parties are to derive any benefit either from a sale or partition. But each of the seventy-five persons is entitled to an undivided interest in the inheritance, and if they will not come to terms as between themselves, and will insist that the law shall take its course, the Court is bound to decree a partition or sale. Partition was at common law a matter of right, but under our Code, if it cannot be made without loss or injury to the parties, the Court must decree a sale of the property. We all remember the case before Lord Eldon, for the partition of a house, and as a partition seemed to be ruinous, in mercy to the parties, the cause was continued so that they might come to terms between themselves. But the defendant having refused either to buy or sell at a price named, the commission was ordered, and upon its return exceptions being filed to its ratification by the defendant, on the ground that the commissioners had allotted to the complainant all the chimneys and fire-places, and the only stairway in-the house and all the conveniences of the yard, Lord Eldon overruled them, saying he did not know how to make a better partition for the parties; that he granted the commission with great reluctance, but was bound to do so by authority, and that the parties ought to have come to terms between themselves. Turner vs. Morgan, 8 Ves., 143; Watson vs. The Duke of Northumberland, 11 Ves., 157, and Agar vs. Fairfax, 17 Ves., 546.
So in this case as the proof shows that the property will not divide in kind, ufithout loss or injury to the *6parties, if they will not agree among themselves, there is nothing left for the Court to do hut to decree a sale, although the sale may not bring any money into Court for distribution.
There is however an objection to the decree below, and one on account of which it must be reversed, and the cause remanded. The defendants in- their answer allege that the lease granted to certain persons therein named for the use and benefit of the High German Lutheran Church is a void lease, because the beneficial lessees were unincorporated at the time it was made, and that the parties to the suit are entitled to the property, free and discharged of this alleged leasehold estate. If this be so, then the interest of the parties in the lot may be a valuable interest, and the Court ought undeij such circumstances to have withheld the bill, for a reasonable time, until the validity of the lease was tested, or at least to have given the parties an opportunity to test its validity. The delay could not possibly work any injury, for if the lot was sold subject to the lease, the proceeds of sale, it is clear, would not even pay the costs of suit. So there was no money for the parties from such a sale. And besides, where there is a question as to the quantity of interest to which the parties are entitled, the Court ought to stay the proceedings until that question is determined. Com. Dig. Chanc., (4 E.); Bishop of Ely vs. Kenrick, Bunb., 322; Blynman vs. Brown, 2 Vern., 232; Parker vs. Gerard, Ambler, 236.
As to making the owners of the leasehold interest original parties, it does not strike us there is any force in this objection. The bill was filed for the sale of the inheritance subject to this interest, and such a sale could not in any manner affect the interest of the lessees. And this being so, it was not necessary to make them parties. In Baring vs. Nash, 1 Ves. & *7Beames, 551, where .a 'demurrer was taken to a bill filed by a' lessee for a long term of years in one-tenth of the property, against the owners of the inheritance of the other nine-tenths, because the owner of the inheritance of the one-tenth was not made a party. Sir Thomas Plummer, Vice-Chancellor, overruled the demurrer, on the ground that if he had been made a party, the owner of the term could not compel him to join in the'partition. They represent, he said, between them the absolute interest in the tenth part, hut each lias a separate, independent interest, and the proceeding of the one can neither avail nor bind the other. Wills vs. Slade, 6 Ves., 498; Turner vs. Morgan, 8 Ves., 143.
(Decided 12th April, 1888.)
Decree reversed, and cause remanded.