Jewett v. Persons Unknown , 61 Me. 408 ( 1872 )

Appleton, C. J.

These petitioners have presented their 'petitions for the partition of certain townships.in which they are tenants in common. After setting out their fractional interests in the townships sought to be divided, they state in each petition that the township contains one thousand acres of land, reserved for the exclusive benefit of the town, which has not been located ; that they cannot occupy and improve the said parts to any advantage while the same lie in common and undivided, but wholly lose the profits thereof, and they pray that notice may issue in due form of Jaw, and that said one thousand acres may be located and their parts be set off and assigned to them in severalty.

The respondents, who appear, deny the seizin of the petitioners, plead sole seizin in themselves, and resist partition on various grounds, some of which are applicable to all, and others only to a part, of the petitions.

By the terms of the report, if the petitioners are not entitled to have partition, as prayed for, they are to become nonsuit.

1. It is objected that the interest of the petitioners is not correctly set forth in their several petitions. There should be reasonable certainty to enable the respondents to traverse the petitioners’ seizin. The petitioners in each can describe their fraction of the whole township of which they pray partition.

It is urged that the fraction is not correctly described, because there is a reservation of land for public uses. If the fraction is truly given in case there is no reservation, it is equally so, if there bo a reservation. In other words, if the petitioners own one-half or any other fraction of a township, if there is no reservation of any number of acres, their interest in the balance, when there is a reservation to which their title is subject, remains unchanged. The several petitions set forth the reservations for public uses with a prayer that they be first set out. It is obvious if these reservations are correctly stated in the petitions, and the petitioners have accurately stated their share, that it must be of the balance and that the description is sufficient.

2. Notice upon all parties interested was ordered upon the entry of the several petitions, and the case finds that notice has been proved as ordered.

The objection taken by the respondents is that no specific notice was ordered to be given to the land agent, to whom the care and custody of the public lands is intrusted. In Upham v. Bradley, 17 Maine, 428, “it was made a point of the defence,” observes Shepley, J., “by the brief statement that the lands reserved for public uses had not been set off. The second section of the statute of 1888, c. 845, applies to process thereafter to be commenced, and the requisitions of the law may all be complied with in making the partition.” In like manner, all the requirements of law as prescribed by R. S. of 1871, c. 88, § 29, may be complied with bere.

But without determining the necessity of notice to the land agent, it is sufficient here to observe that there is no plea nor brie? statement of want of notice to the land agent. Nor is it readily perceived that the respondents are entitled without plea or brief statement or with them to intervene as volunteers in his behalf.

The petition and the notice are in the usual form and the order of court has been complied with.

3. By R. S. of 1871, c. 82, § 99, “ In actions touching the realty or in which the title to real estate is material to the issue, and when original deeds would be admissible, attested copies of such deeds from the registry may be used as evidence,' without proof of their execution, when the party offering such copy is not a grantee in the deed, nor claims as heir, nor justifies as servant of the grantee or his heirs.”

The petitioners introduced record copies of the deeds of the land agents of Maine and Massachusetts to grantees under whom the petitioners and the respondents alike derive their title by various mesne conveyances. So far as these conveyances show the title in the petitioners to the fractions by them claimed, they establish their right to partition. If in any instance there is a failure to do this, it will be distinctly stated.

4. The respondents’ plea of sole seizin is disproved by evidence offered. Indeed, the'petitioners and the respondents derive, their title from the same source and the evidence negatives any real conflict between them. It shows the petitioners entitled to partition as claimed, and that the respondents have no rights which conflict with the several interests of the petitioners as described in their several petitions.

5. In the tenth petition an office copy of a deed of the east half of township No. 15, R. 6, west from the east line of the State from the State of Maine to the Corinth Academy, but recorded in another registry than that in which the land was situated, was offered in evidence. But the copy is not admissible to affect the rights of the parties.

That deed being excluded, the title stands thus. Adams H. Merrill by deed of warranty, dated March 6, 1850, conveyed to George K. Jewett and Leonard March the east half of said township No. 15, R. 6. On Jan. 6, 1851, Jewett and March by deed of warranty conveyed half of said east half to Elbridge G. Dunn. By these conveyances Dunn became the owner of half and Jewett and March of half of said east half. The respondents are the devisees of March and have shown no title to more than a quarter of said half. There is therefore no conflict between the title of the petitioners and the respondents.

6. The deeds in the case show that E. D. Jewett is an owner in the lands of which partition is prayed to the extent set forth in the several petitions to which he is a party. There is no sufficient proof that he has ever parted with his title. No deed or office copy of a deed from him to any one was offered in evidence.

George K. Jewett testified that he did not know of his own knowledge whether E. D. Jewett was now an owner or not; that some years since he named his intention to convey said land to him; that he believes he executed such conveyance, but he has no remembrance of seeing the deed, and that if there was one he has not transferred the land to any one.

The deed, if there was one, is not shown to have been lost so as to authorize parol evidence of its contents. It would seem probably not to have been recorded as no office copy was offered. It is not proved to have been delivered, but rather the reverse, for if not seen by the grantee there could not well have been a delivery.

7. The mortgage deeds from the petitioners to John H. Pope, of their interest in the land to be divided, cannot be interposed to prevent partition. Pope is no party to these proceedings and Sets up no adverse interest. The respondents have no right to intervene in his behalf. As to all persons but the mortgagee the mortgager is regarded as the owner and seized of the estate. Upham v. Bradley, 17 Maine, 427.

Judgment that partition he made according to the prayer of the petitioners.

KeNT, CuttiNG, BaeRows, WaltoN, and Tapley, JJ., concurred.