Field v. Hanscomb , 15 Me. 365 ( 1839 )

The opinion of the Court, after a continuance for advisement, was drawn up by

Weston C. J.

The stat. of 1821, c. 37, for the partition of lands or other real estate, has provided a process by petition, which may be substituted for a writ of partition at common law. It is not technically a civil action, commencing by writ, but a trial by jury is provided for, and an appeal allowed from the Common Pleas to the Supreme Judicial Court. In 1835, the right of appeal, from the former to the latter Court, was taken away ; and it became the policy of the law to allow but one trial in a civil suit, except in certain cases, at the discretion of the Court. Accordingly, by the stat. of 1835, c. 165, it was provided, that no appeal shall be had from the Common Pleas in any civil action. Unless petitions for partition, which have in practice taken the place of writs of partition, are held to fall under this class, the right of appeal still exists with regard to them, and they remain subject to all the mischiefs, which were found to attend repeated trials of questions of fact. We are of opinion, that the term, civil actions, is broad enough to embrace petitions for partition. There is no reason for denying an appeal upon a writ of partition, which does not apply with equal force to petitions. But although the right of appeal no longer exists, the party aggrieved by an opinion, direction or judgment of the Court of Common Pleas, in any matter of law, may bring the case into this Court upon exceptions.

We perceive however in the case before us, no error in the opinion or adjudication of the Common Pleas. It must be understood, that the partition made by the commissioners was equal in value, according to the shares of the respective owners. It is not suggested or pretended, that there is any inequality in the value of the shares, as set off in severalty. The comparative value of each share is the criterion, by which equality of partition is to be ascertained. Probably in a majority of cases, this could not be effected by a division, having reference to quantity only.

Baker, one of the petitioners, avers that he is seized of one sixth part of the land, of which partition is prayed. This averment is not controverted. He proceeds further to deduce from that proportion, the number of acres of which he is seized in common. This is manifestly based upon the assumption, that there were nearly forty-three acres in the whole, although the quantity stated is forty-two acres, more or less. It is a result obtained by dividing the number of acres and squaje rods by six, which would give his fractional proportion. The commissioners have assigned him only a sixth in value, although they have given him a greater number of acres, than he would have been entitled to, if every acre was of equal value. The controlling and decisive averment is, that he is seized of one sixth. That proportion has been assigned to him; and we are of opinion, that the partition made is substantially in conformity with the petition.

Exceptions overruled.