Duncan v. Sylvester , 16 Me. 388 ( 1839 )

The opinion of the Court was drawn up by

Weston C. J.

Assuming, for the purpose of determining its ■ legal bearing, that the testimony offered by the respondent had been received, it appears that in July, 1819, one George Knight and the petitioner were tenants in common of a tract of land, of which the part described in the petition was understood to constitute one half. In July, 1823, Knight and the petitioner caused the whole to be surveyed, and thereupon made a parol partition of -the .same by metes and bounds, in pursuance of which the parties and those claiming under them, have since occupied in severalty. In the same month of July, the petitioner conveyed, by a deed of warranty, the part assigned to him, to Jones Shaw, by metes and bounds. And in June, 1833, Knight also conveyed, by deed of warranty, the part assigned to him, by metes and bounds, to the respondent.

Neither the parol division, nor the subsequent corresponding occupation, nor the conveyance by each of the purparty assigned to him, operated as an effectual legal partition. Knight and the petitioner were seized per mi et per tout, and neither could invest the other with a separate title to a portion of the tract, without the formality of a deed. Each therefore may avoid the conveyance of the other, so that it may not interpose an obstacle to a just and equal partition. The tenancy in common, embracing the whole tract, neither can, by his own act, exclude the other from any part of it. The petitioner 1ms elected to avoid these proceedings, as far as be can do so, and he now claims partition of that, which he had assigned by parol to his co-tenant.

The statute authorizes partition to be made between those who are interested in the estate, and requires that all persons so interested should bo notified. Knight has the same interest in the part, which tbe petitioner conveyed to Shaw, as tlie petitioner has in the part conveyed by Knight to the respondent; and both Shaw and the respondent are interested in that part of the estate, which may finally enure to them, by force of the estoppel, arising from the deeds to them respectively. Varnum v. Abbott & al. 12 Mass. R. 474. The respondent therefore having an interest in the land, and being privy in estate with Knight, has the same right to require that in the partition, the conveyance made by the petitioner should be disregarded, as the petitioner has to insist, that the conveyance made by Knight should be disregarded. The result is, that to make the partition legal and effectual, it should be made of the whole tract. And this is the reason why conveyances made by one co-tenant of a part in severalty, or of his interest in a part, may be avoided by the other co-tenants, when they take measures to effect partition at law. It is a violation of this principle, to attempt to do it piecemeal. If two are tenants in common of an hundred acres of land, eligible for the s^ite of a village, and each sells in severalty a few small house lots, constituting but a small proportion of what each is entitled to, it would bo most inconvenient to sustain a separate petition for partition of each of these small lots. In such case the co-tenant, who petitions, should describe and aver his interest in the whole tract, and it would then ho easy, as it would be most equitable and just for the commissioners to make partition in such a way, as to quiet the several grantees of each.

In Miller v. Miller & al., 13 Pick. 237, it was decided by the Court, “ as a well settled rule of law, that a tenant in common cannot enforce partition of a part of the common tenement, by metes and bounds.” And we are of opinion, that the default must be taken off; and if the petitioner would maintain his process, he must so amend, as to include the whole tract. And if upon the appointment of the commissioners, they should find the former partition just and equal, as there is much reason to believe they will, they will make it in the same manner; the effect of which will be to vest the title in the respective grantees in severalty, by estoppel. \And in this mode, the attempt of the petitioner, after having enjoyed and actually sold one half of the land, to get away a part of the residue may, and should be defeated.