Howe v. Blanden , 21 Vt. 315 ( 1849 )

The opinion of the court was delivered by

Bennett, J,

This is an action of ejectment to recover certain lands, described in the plaintiffs’ declaration, situate in Putney. The plaintiffs and the defendant Blanden set up conflicting titles to the premises, as derived from one Daniel Packer, under the levy of certain executions against him. It is agreed, that Packer owned and possessed an undivided half of certain premises, in fee, situate in Putney, in his own right; and the other half he held in the right of his wife, to whom they had been devised in fee. On the third day of May, 1842, Blanden, on a writ against Packer, attached all the lands he owned in Putney ; and, having obtained judgment, he levied his execution on the three parcels of land described in the declaration, being a part of the land, which Packer and his wife owned in common; but in his levy Blanden treated the two first parcels described in the declaration as belonging to Packer’s wife in severalty, and set off Packer’s life estate, as tenant by curtesy.

In July, 1842, the plaintiffs attached the whole town of Putney, as the property of Packer; and they, having also obtained judgment against him, on the fifth day of April, 1844, levied their execution on an undivided half of the piece of land on the west side of the road, and designated on the plan, which is a part of the case, as C 1, as belonging to Packer in fee, and also upon an undivided half of the piece designated on the plan as C 2, as belonging to Packer in fee. Both of these pieces are included within Blanden’s levy. The case shows, that, prior to either of these levies, there had been an attempt to make a partition between Packer and his wife ; and it is claimed, that the whole of the pieces designated as C 1 and C 2, being the two first parcels demanded, had been set to the wife in severalty. If the partition is operative, it may follow, that Blanden’s title to this portion of the premises is paramount to the title of the plaintiffs.

The facts in regard to the partition seem to be, that, at the May Term of the county court, 1843, Packer and his wife addressed to the court their joint petition, representing that they held certain lands in common, and praying the court to appoint a committee to make partition between them. A committee was thereupon appointed by the county court; they made partition, and returned their report, and it was accepted by the court and ordered to be recorded, at the same term, at which the petition was preferred.

We think this pretended partition must be inoperative. The husband and wife could not, by any agreement between themselves, make a valid partition. The coverture disables them to contract together; and they cannot constitute adverse parties to a proceeding at law. The proceeding to compel partition, under our statute, is an adversary proceeding, and has always been regarded as such. Parties are as necessary to an adversary proceeding, as a court and the subject matter of the proceeding. The first section of the statute relating to the partition of real estate enacts, “ that any person,” having or holding real estate in common, &c., may have partition in the manner thereafter provided. The subsequent provisions provide for an adversary proceeding, in which the rights of the parties may be litigated ; and'the parties are concluded by the partition.

We think a feme covert cannot, under this statute, compel a partition against her husband, nor the husband against his wife. The expression “ any person,” in the statute, should be restrained to such a person, as could be a suitor in the common law courts. It would seem rather incongruous, to enforce a partition, so long as the husband is entitled to hold the wife’s part as tenant by the "curtesy. If a partition can be enforced between Packer and his wife, it appears to me, that a resort should be had to chancery, — where the wife may institute proceedings against the husband, by means of a next friend, whenever her separate interest requires it. We think the Gounty court had no power to order partition on this petition of Packer and wife, and that the whole matter was non comm, judice. They could not confer the power upon the court by preferring the petition by mutual consent. If they could not make partition between themselves by consent, they could not well confer power on others to make it for them.

If, then, the partition is void, the inquiry arises, what effeot must that have ? Though Blanden’s attachment and levy are first in point of time, yet his levy upon that portion of the premises now in dispute was upon the whole land, as an estate by the curtesy held by Packer, when in fact Packer had an estate in fee simple in an undivided half, and an estate by the curtesy in the remainder. The creditor must levy upon the whole estate, which the debtor has in the premises. He cannot carve out a less estate, leaving a reversion in the debtor. This would be altogether irregular. If such a levy be made, it is void, at least as against the debtor, and no title passes under it. It is said in argument, that Packer should be estopped from setting up any objection to the levy; and that the estoppel also binds the plaintiffs, who claim under him. But if the levy is void, and passed no estate as against Packer, we do not see, that either he, or those claiming under him, can be estopped from denying its validity.

The defendants farther claim, that the plaintiffs’ levy is bad, and conferred upon them no title; and that consequently judgment should be for the defendants, although Blanden has failed to establish his title.

The objection to the plaintiffs’ levy is,, that they levied upon an undivided moiety of a given portion of the lands held in common by Packer and his wife, and not upon such an undivided portion of the whole, as would have been sufficient, to satisfy their execution. We think, that such a levy as this can never be* allowed to prejudice the rights of the other tenant; and if it does, she must have the right to deny its validity, if she choose. She has the right to have her moiety set out from the whole lands held in common with her husband. As against Packer the levy is well enough, and he cannot object to it. The levy is not absolutely void, but only voidable, at the election of the other tenant; and if such tenant should have her moiety severed and set out, by a legal proceeding, so as not to include any part of the lands levied upon, it might well be questioned, whether even she, after that, could’ be allowed to object to the levy. If it be not competent for Packer to object to the validity of the levy, most clearly those who claim under him cannot.

It is immaterial, on this point, whether Packer was present at the time the levy was made, or not; or whether he had notice, in point of fact, when the levy was to be made, or not. It be none the less binding upon him. But tlie levy shows, that, Packer being out of the county, his attorney of record was called upon to appoint appraisers, and declined to do so.

As the plaintiffs have, on trial, waived any right to recover any part of the other piece described' in their declaration, nothing need be said as to the title to that parcel.

The result is, the judgment of the county court is reversed, and judgment rendered for the' plaintiffs to recover the undivided moieties of the parcels marked on the plan C 1 and C 2, being the two parcels of land first described in their declaration,- and damages and costs.