Bromagham v. Clapp , 1 Lock. Rev. Cas. 11 ( 1799 )

The Supreme Court held upon this state of facts, that though the defendant’s possession was adverse from the 3d of May, 1803, and the possessor’s right of all the plaintiffs gone by the lapse of 20 years; yet as the possession was short of twenty-five years, and therefore no bar to a writ of right, the Court were bound to proceed under the statute, and ascertain the rights of the parties ; and that, to warrant proceedings in partition, it was not necessary that all the parties should be actually seised when the suit is commenced, as possession is not awarded in the action. On writ of error from the Supreme Court.

The Court of Errors held, that the issue made by the pleadings in the cause, was a proper one in partition under the statute, and that it was incumbent on the plaintiffs to prove at the trial, that they were seised in common, according to the meaning of the issue, and that twenty years adverse ■possession would bar a suit for partition.

The Chancellor, (Jones,) who delivered the only opinion reported, maintains that in proceedings for partition, the plaintiff or petitioner, must allege that he is seised, and show an actual present possession ; that a mere right of entry, will not satisfy the averment of seisin ; and that therefore, an adverse possession of the defendant though short of twenty years is a bar.” Quere 1

He also holds, that though a judgment in partition does not change the possession, yet, in an ejectment or writ of right, it would be conclusive between the parties. The jury, therefore, should have been instructed, that if they found the adverse possession proved to their satisfaction, they should render their verdict for the defendant.

It was held by the whole court, that any one defendant in partition may bring Error separately.

Judgment reversed.

S. C. 6 Cow. 611. held by S. C. that bail in error, is necessary to stay proceedings in partition. See 8 Cow. 746, arid 9 id. 304, on motion to amend writ of error.