(after stating the facts). We find no just grounds of exception to the validity and efficac}^ of the-agreement as to the estate and interest which the feme shall have in her husband’s property after their contemplated marriage and his death. The contract relates to his property, leaving her, under the general law, to retain all her own. The marriage is the essential consideration of the agreement to be content with the share which would fall to a child, in the event of his intestacy.
The contract does not enable him to cut her off by executing a will which disposes of the estate to outside parties, but secures, in any event, to her that which would be the share of a child in the absence of any testamentary disposition. So it is understood by the heirs, and they open the door for her to enter and share with them the inherited lands.
Whatever may have been the action of a court of law in the enforcement of technical rules, a court of equity will-enforce an executory agreement between parties about to enter the marriage relation and carry out its provisions. *477“ In the court of equity,” remarks Mr. Bishop, quoting from Bell on Husband and Wife, 326, “if, upon marriage, the husband, by agreement between him and the wife, she being adult, had made any provision for her which she accepted in lieu of dower, equity, acting upon the jurisdiction which it has at all times exercised of enforcing agreements between parties competent to enter into them, would have enforced the agreement as a bar to dower upon the footing of preventing a double satisfaction, namely, the enjoyment of the provision, and likewise of dower. 1 Bishop’s Law of Married Women, §363. In Cawley v. Lawson, 5 Jones Eq., 132, there was an antenuptial contract by which it was covenanted, on the death of the other, each was to resume his and her own property, as held at the marriage, and take no interest in, nor set up any claim to anything belonging to the decedent. On a bill filed by the distributees and next-of-kin of the husband, against the surviving widow, who became administratrix, for an account of his estate, the claim was sustained, and Manly, J., delivering the opinion, says: “ The covenants extend to every claim of every sort, which the defendant can set up to the real or personal estate of her husband, as his widow. She is prechtded, therefore, as we think, in this Court, from dower, distributive share, or year’s provision in her husband’s estate.”
Here the covenant is explicit, to accept a child’s share in the real and personal estate of her husband, and he covenants that she shall have such in place of dower and a year’s provisions; and we are clearly of the opinion that she must abide by this mutual agreement.
We have considered only the question presentéd in the record in determining the appeal. But to avoid any inference from silence, we advert to the fact that a three-tenths interest in the thirty acre tract is proposed to be sold also for division, the tenant or tenants of the other seven-tenths not being before the Court, nor could they rightfully be, since *478they have no property in common in the larger tract. Simpson v. Wallace, 83 N. C., 477.
We have met with no case in which such an undivided interest has been the subject of partition and sale at the instance of those owning it, when the other tenants are not present in the action.
The statute requires actual partition among tenants in common of the whole tract, though shares may be united and apportioned to several, or a single share may be allotted to one, the residue of the land being still held in common by the other tenants, but however done, the partition must be of the whole. The sale as a mode of partition can only be resorted to when otherwise it would be to “the injury of some or all of the parties interested.” The Code, §1904.
The actual divisibility of the land into parts as an inquiry to be made before an order of sale, can only be legally made when all the tenants are before the Court. Should this be practicable, and the three-tenths parts be converted into an estate in severalty, in the portion assigned to such owners, this separate land, divested of all other claims, might properly be included in the petition for partition and sale of the larger tract that belongs exclusively to the parties to the suit. Or, if a sale become necessary, the proceeds could be appropriated among the common owners, and petition be made without further action.
These suggestions are made for the consideration of parties, and more especially in view of the fact that the tenants, all of full age as the petition alleges, and by their own united action, sell this undivided interest and divide the proceeds upon the’basis of our ruling as to their several and respective rights.
There is no error.
No error. Affirmed.