Folger v. Mitchell ( 1826 )

Wilde J.

delivered the opinion of the Court. The facts appearing in evidence on the trial of the issue are reported, and several questions of law have been raised which are to be now decided. The first in order would be that which relates to the petitioner’s title, but the objections made at the trial are now waived ; so that the only general question remaining to be considered is, whether the several divisions or partitions, which have been made by the proprietors of the common and undivided lands since the 9th day of December 1813, and under which the respondents claim, are valid in law.

These divisions were made in pursuance of the votes of the proprietors at a regular meeting, and a committee was appointed to make the allotments; which, being made, were drawn for by lots, and in classes, and thus were assigned, each class to hold in common among themselves the part assigned to them, and to the exclusion of the other proprietors.

Several objections have been made to these divisions. The first is, that it was a partition by parol, and not by deed, and therefore void. In the case of Adams v. Frothingham, 3 Mass. R. 352, it was decided, that proprietors of common lands might legally divide their lands, or make allotments thereof, by vote, and without deed. The same principle was recognised in the case of Codman & al. v. Winslow, 10 Mass. R. 146, and again in the case of The Inhabitants of Springfield v. Miller, 12 Mass. R. 415, and the same has been repeatedly so decided at nisi prius ; and it is admitted by the petitioner’s counsel, that in respect to ancient divisions and allotments the law is clearly so. We think that more recent divisions and allotments are supported by reasons equally cogent. After a construction has been given to a statute, titles acquired in pursuance of such construction ought not to be disturbed. The colony law, and the St. 1783, c. 39, are substantially the same, and should receive the same construction. This construction, being settled as to the colony law, must be applied also to the revised statute. Indeed the revised statute did nothing more on this point, than to reenact the same provision. The .aw, therefore, was not changed, and every one interested might well act on the presumption, that the construction was settled by the cases referred to. But were it otherwise, and were this statute now to be construed for the first time, we have no doubt that the construction contended for by the respondents’ counsel is the correct one. The language of the statute is general, and does not prescribe the manner in which division is to be made, but expressly authorizes the proprietors to make division in such way and manner as shall be agreed upon by the major part of the interested present at any legal meeting.¹ This way and manner must be agreed upon by the proprietors, and the proceedings must be recorded. The addition of a seal to the vote of the corporation would give no additional security or certainty to the conveyance. It is not required by the statute. The statute of frauds is clearly not applicable.

The next objection to be considered is, that the proprietors were not authorized to create any new tenancies in common, but should have assigned to each his purparty. On a writ de partitione faciendo at common law, or under the statutes of 31 and 32 Hen. 8, this was necessary. This writ, at common law, only lay between parceners, and there was no difficulty in assigning to each her purparty. When the law was extended by the statutes cited, to jointenants and tenants in common they were authorized to make partition in the same manner as parceners had a right to make it at common law. Our statute which provides for partition has no such reference, nor does it require expressly that the share set off shall be held in severalty. No case has been cited in which such a construction has been given. In the case of Mitchell & al. v. Starluck & al. 10 Mass. R. 5, no such objection was made, and a different construction was adopted. But we do not think it necessary to decide this point in the present case, which turns on another statute, as to the construction of which we have no doubt. The proprietors had a right to divide in the manner most convenient to them. If they were compelled to assign to each proprietor his purparty, it would be impossible for them to make partition unless all the proprietors were known ; and in many cases it would be difficult, if not impossible, to obtain such knowledge. Such a construction, therefore, would be extremely inconvenient, if it would not wholly defeat the object of the statute. The language of the statute does not require this construction, but the obvious meaning is, that proprietors may divide their lands in such way and manner, as they may deem most conducive to their mutual interests.

But it has been argued that these divisions were not reason able ; that they were oppressive and injurious to the interests of the small proprietors, and prevented them from having their shares set off to them respectively in one allotment. It is very possible, perhaps probable, that the mode adopted by the proprietors may operate as some inconvenience to some of the small proprietors ; but no fraudulent intention appears, and a strong case must be made out to authorize the Court to set aside the divisions on the ground of inconvenience. To set them aside would probably occasion much greater inconvenience and injury than can be reasonably apprehended from establishing them.

Another objection made is, that the survey was loose and inaccurate, and that the courses and distances given will not bring the lines together conformably to the plan. This objection may be made in almost every case of a survey of a large tract of land, where the same is divided into small lots. It is hardly possible to obtain perfect accuracy, but the rights of the parties may be commonly ascertained. According to a familiar rule of construction, courses and distances are made to conform to the metes and bounds referred to ; and it appears by the report, that the exterior lines and boundaries of the sev eral tracts of land divided are well known, so that all of them can be found with ease, and could be so, if no courses ana distances were given, or were given incorrectly.¹

Another objection is, that the shares in some instances are assigned to heirs, sons, &c., without naming the assignees, except by words of description. But this exception is clearly insufficient to impeach the validity of the divisions. Those who answer to the description will take, for the description is certain and clear.

Another objection is, that the report of the committee ap pointed to lay out the tract called “ Gibbs’ Swamp,” is void, having been signed by only two of the committee, the whole number being three. This, however, we think is well enough, the third person having joined in all the acts except signing the report, and this we do not think at all important. The return would be good if made by one of the committee at the request of the others. If a plan only had been returned to the proprietors, it would have been sufficient ; and the division would have been good even without any return. The proprietors could undoubtedly make the division in a manner different from that reported. The committee were appointed to procure information and to do certain acts, and though all should have joined to bind the proprietors, yet if only one had acted, it would have been competent for the proprietors to ratify his doings and proceed in the partition.²

Only one objection more remains to be considered. It is urged, that when the division was made in 1821, a petition for partition was pending in the Court of Common Pleas, and that the pendency of that suit superseded the doings of the proprietors. No doubt that would have been true, had the petitioner proceeded to final judgment; but the mere pendency of that suit cannot be pleaded in the present. It is understood that neither of the petitions now pending was instituted before the divisions set up by the respondents were completed.

Upon the whole, therefore, as to the 8384 acres and 48 rods, the petitioner has no title, and as to the residue, no objection is made to the prayer of the petition. If the residue can be described with sufficient certainty, commissioners will be appointed to make partition accordingly.

1 See Revised Stat. c. 43, § 6, 7.

1 See Howe v. Bass, 2 Mass. R. (Rand’s ed.) 380, 384, n. (a), and cases there collected.

2 See First Parish in Sutton v. Cole, ante, 245; Emerson v. Newbury, 13 Pick. 379; Shaw v. Nudd, 8 Pick. 9.