Edson v. Munsell , 94 Mass. 600 ( 1866 )

Chapman, J.

It appears that in February 1836 partition was made of the whole of the farm which had formerly belonged to Mrs. Martha Partridge, including the lot on which the spring is situated. The judgment of partition was rendered in the court of common pleas, upon the petition of her son Duty Partridge, by his guardian. Isaac Chapin was a party respondent. Under this partition the parties entered into the several tracts set off to them respectively, and they and their grantees have held them ever since. The judgment of partition, remaining in force and unreversed, is conclusive upon the parties and their privies as to the title up to the time of its rendition. They are estopped to say that they were not tenants in common of the whole of the land. It is conclusive in respect to the spring as well as in respect to the land. It concludes the plaintiff, who claims unde» Chapin, and the defendant, who claims under Duty Partridge.

The report also shows that in fact no adverse title to the spring could have been gained as against Duty Partridge up to the time of the partition. His mother died in 1797. His father then entered upon the land as tenant by the curtesy, and held it till his death in 1818. Up to that time adverse occupation would have been immaterial as to him. A disseisin of a tenant for life does not affect the title of the remainder-man. Miller v. Ewing, 6 Cush. 34. Between that time and the partition only eighteen years elapsed, which was insufficient to gain an adverse title.

Since the partition he has been under guardianship as a person non compos mentis for so great a part of the time as to prevent the acquisition of any title against him by adverse occupation. The judge ought to have ruled, as requested, that Isaac Chapin acquired no right to the spring by adverse occupation up to the time of the partition. His attention does not appear to have been called to some of the other points here ¿iscussed. Exceptions sustained.