Marks v. Sewall , 120 Mass. 174 ( 1876 )

Deters, J.

It is conceded, as a general proposition, that a tenant in common, as against his co-tenants, cannot convey his interest in a specified parcel of the lands held in common. Adam v. Briggs Iron Co. 7 Cush. 361, and authorities cited. It is, however, argued that, as when the conveyance was made by Charles H. Sewall, it purported to convey his interest in the High Street estate, which was all the land then lying in the county of Suffolk, and that as it was then in the power of the judge of probate to have issued a separate warrant and caused a separate partition to have been made of the lands lying in that county, (Gen. Sts. c. 136, § 50,) the conveyance may here be treated as valid against the co-tenants. But it was in the power of the Probate" Court then, by one commission, to have made partition of all the real estate lying within the state, (Gen. Sts. c. 136, § 48,) and at the time when the commission was actually issued, both parcels which were to be divided had, by the annexation of territory of Charlestown, become a part of the county of Suffolk. The mere fact that, but for the occurrence of this latter contingency, the Probate Court could have divided the lands of the deceased by separate commissions, does not entitle the appellant to claim that he would then have had, or that he now has, a right to have the High Street estate separately divided.

■ If, as against the co-tenants, the mortgage made by Charles H. Sewall is invalid, the court should not refuse to confirm the decree for partition. While the court may, for sufficient reason, set aside the return of the commissioners and recommit the case, (Gen. Sts. c. 136, § 74,) yet the reason for so doing should be because there is some objection to the return as made, and not because one might be made which would facilitate other proceedings before another tribunal by the appellant against Sewall. If treating the mortgage as invalid, the partition is a fair and just one, it should be confirmed.

Nor, if the partition is thus confirmed, is the appellant entitled to have the sum of $5833.33 (which is the amount in money to be paid to Charles H. Sewall) first paid or secured to him. It is a part indeed of the proceeds of that portion of his inheritance which Sewall assumed to convey to the appellant; but if the mortgage be invalid as to them, the co-tenants have the right here to have the partition confirmed without regard to any relations which may exist between Sewall and the appellant. Decree affirmed.