Southgate v. Burnham , 1 Me. 369 ( 1821 )

The cause having been continued to this term for advisement, the opinion of the Court was delivered as follows, by

Weston J.

From the evidence in this case it clearly appears, that at the time the demandant preferred his petition for partition of the lands, of which the demanded premises constituted a part, he was actually seized, as tenant in common, of the share which was afterwards set off to him in severalty, by a title emanating from the same source with that under which the tenant held ; and that the latter had a full knowledge of the origin of the right of the demandant, and of the proceedings under the process for partition. If, therefore, these proceedings can be supported in point of form, the claim of the demandant appears to be well founded upon the merits.

It is objected, on the part of the tenant, that the attested copy of the judgment of the Court of Common Pleas, upon which the demandant relies, is not of itself sufficient evidence, without the production of a copy of the original petition for partition. But we know of no rule or principle of law which requires the exhibition of this paper, as additional evidence of the facts recited in the judgment, any more than a copy of the original writ, in support of a judgment in ordinary cases. The regularity of the antecedent proceedings is presumed; and can be impeached only upon error brought to reverse the judgment. And for this reason the entries in the several dockets were properly rejected ; the judgment deriving from them no additional verity, and they being entirely inadmissible for the purpose of impeaching it. If indeed, by the misprision of the clerk, a judgment has been erroneously entered up, the Court may in a summarj'-manner, in their discretion, order its correction. But in a case within its jurisdiction, full faith and credit is to be given to the judgment of a court of record ; and, except upon a writ of error, it is not to be controverted by any plea or evidence whatever.

It is further objected, that there was in this case no formal entry of the interlocutory judgment, quod partido fiat. It is certainly proper and suitable that this judgment should be entered ; although we understand that, in many of the counties, it was generally omitted in the Courts of Common Pleas. How far this exception might be sustained, if the proceedings were before us upon a writ of error, it is not necessary now to determine ; but we are of opinion that the process in question, not having in any of its stages assumed an adversary form, the appointment of commissioners by the Court to make partition, was virtually aud substantially equivalent to the entry of the interlocutory judgment.

It is also insisted that it does not appear that the commissioners appointed were freeholders; but their commission describes them as such, and such they must be presumed to be, at least until the contrary is shewn, if indeed this could be permitted to be done in the trial of the present action.

The counsel for the tenant lastly contend, that the final and principal judgment, quod partido prendida firma et stabilis, &c. was not rendered by the Court. The statute however provides, that the division or partition made by the commissioners, “ being accepted by the said Court, which ordered the division to be made, and there recorded, and also recorded in the Registry of deeds, in the county where such estate lies, shall be valid and effectual to all intents and purposes.” Stat. 1783. ch. 41. sec. 1. This having been done in the case objected to, we do not feel warranted in deciding that the power and authority, given by the statute to the Court, was not sufficiently executed ; especially when it is considered that the same form of proceeding was formerly very extensively adopted in the Common Pleas.

There being however a strong analogy between the process for partition by petition, and that by a writ of partition at common law, the former being a substitute for the latter, it is in the highest degree proper that, in the proceedings under each of these remedies, both the interlocutory and final judgments should be entered, according to the forms prescribed by the common law.

We must not lose sight of the consideration, that the demand-itnt in this action relies upon a subsisting judgment, of a Court having jurisdiction of the subject matter. Had the irregularities in the antecedent proceedings been pointed out and assigned upon a writ of error, we do not take it upon us to declare that they might not have been deemed fatal to the judgment; but it is upon that process only, as has been before remarked, that it can by law be suffered to be impeached.

Upon the whole we are satisfied that none of the objections, made by the counsel for the tenant, to the opinions and direction of the Judge, who presided at the trial, can be sustained, and that

Judgment must be entered upon the verdict.