Wass v. Bucknam , 38 Me. 356 ( 1854 )

Howard, J.

— The premises of which partition is sought, were a portion of the estate of John Bucknam; and were divided by commissioners in 1199, between his widow Mary, and his daughters Mary and Anna j one half part being assigned to the widow, and one quarter, in common, to each of the daughters. Mary, the daughter, died before her mother, intestate and without issue, and her portion was inherited by her brothers and sisters, including Anna, and her mother, in the proportion of one-eighth to each. On the death of the mother in 1804, her estate, embraced in the petition, was inherited by her seven children, including Anna, in common.

Anna was married to William Wass, senior, about 1195, and died in 1809, leaving their four children, two of whom are the petitioners, William Wass and Mrs. Coffin. They claim one quarter, each, of the estate of their mother, before mentioned. Their father, William Wass, senior, died in 1851.

It does not appear in what manner, or by whom the premises were occupied during the life of Mary Bucknam, the widow, and after her husband’s death. But after her decease, her son, Ichabod Bucknam, the father of one of the respondents, and the husband of the other, assumed the control and management of the premises, occupying and improving them; repairing the buildings and letting portions occasionally and receiving rent, until his death in 1846. After his death the respondents “have continued so to occupy till this time,” as stated in the report.

The return of the commissioners appointed to make division of the estates of Mary Bucknam, and her deceased children, John and Mary, is regarded as invalid, for the purposes of the present inquiry. It assumes to assign portions of those estates to persons not then living, and of course not competent to claim or take by such assignment.

The entry of one tenant in common into the common estate, and his subsequent possession, is presumed to be the entry and possession of all the co-tenants, unless otherwise explained and controlled. Each has a right to the possession of the whole estate; and such is the character of their estate that such possession is necessary for the full enjoyment of their legal rights respectively. So if one occupy the whole estate, it is not necessarily, nor by presumption of law, adverse to his co-tenants; but is in accordance with his title, and consistent with his rights, and in support of their common title. He is presumed to be in of right, and not for the purpose of excluding his co-tenants, or with the intention of effecting an ouster or disseizin.

There is no satisfactory evidence that the respondents, and those under whom they claim, ever asserted an exclusive right, or manifested an intention to hold the estate adversely to their co-tenants. The evidence of the character of their occupation and improvement, is consistent with the legal rights and interests of all concerned. Whether there were any surplus rents and profits, or in what manner the rents received were disposed of, does not appear.

Anna, the mother of the petitioners, was seized in her own right, of her interest in the premises, in common with the co-tenant, under whom the respondents claim, his seizin as co-tenant being as well for her as himself; and upon her death, her husband became tenant by the curtesy, and her children were entitled to the remainder, and to her interest upon the termination of the particular estate of the husband by his death. Jackson v. Sellick, 8 Johns. 202, 207; Davis v. Nason, 1 Peters, 507, 508; 4 Kent’s Com., 29, 30. Where it is shown 'that the rigid doctrine of the English law, requiring the wife to be seized in fact and in deed, in order to entitle the husband to his curtesy, has been modified and relaxed in favor of his right.

If, during the life of the husband there was an adverse possession of the estate for more than forty years, as claimed by the respondents, it would not defeat the petitioners. So long as they were out of possession, and without the right or power to acquire it, as was the case during the tenancy of the husband, no possession of another could be adverse to them, and no law of limitations could affect them. The law will not suffer a party to be so far circumvented, as to be deprived of his interests under its sanctions, and for the imputed laches of others, while it renders him incompetent to assert his rights. 2 Salk. 423; Dow v. Danvers, 7 East, 321; Jackson v. Schoonmaker, 4 Johns. 401; Witham v. Perkins, 2 Maine, 400.

The possession of the respondents, and those under whom they claim, not appearing to have been “adverse, open, peaceable, notorious and exclusive,” constituted no bar to the rights of the demandants, either under the provisions of the Revised Statutes, c. 147, or the statutes of 1848, c. 87, and 1852, c. 240, even if no tenancy by the curtesy had intervened after the death of their ancestor. But as such tenancy did intervene, their rights must be deemed, for this purpose, to have accrued when such intermediate estate expired. R. S., c. 147, § 3, second and third clauses.

The construction of the Acts of 1848 and 1852, before cited, in reference to the question of constitutionality, is not called for by the facts disclosed, and becomes unimportant to the decision in this case. Webster v. Cooper, 14 How. 488, 502.

The petitioners are entitled to partition, according to their prayer.

Shepley, C. J., and Tenney, Appleton and Hathaway, J. J., concurred.