Brock v. Eastman , 28 Vt. 658 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

We think there is one point in the case which is fatal to the plaintiff’s petition, and none other need be considered. The first plea puts in issue the seizin of the defendant, as tenant in common with the petitioner; and the exceptions find that the defendant was the sole owner of the premises at the time he executed his mortgage to the Tuckers, in 1850, and that he has ever since been in the sole possession of the premises, claiming adversely to the petitioner under his levy of execution. The object of the proceeding in a petition for partition is to turn an estate that is possessed in common into an estate in severalty, and not to furnish a mode of settling conflicting titles. It is a general rule that a petition for partition cannot be sustained on a mere right of entry. But there is a distinction between a mere possession of the plaintiff’s share by a third person or by the defendant, and a legal disseizin. In cases where a privity has existed between the parties, as in the case of joint tenants, or tenants in common, and one tenant ousts his co-tenant, by taking the whole profits to himself, denying his co-tenant’s right, such a possession may be treated as a disseizin, for the purpose of bringing ejectment; or, he may elect to treat such possession of his co-tenant as his possession, and, in that event, may maintain a petition for partition. See Clapp v. Bromagham, 9 Cowen 566; Barnard v. Pope, 14 Mass. 434; Hawley v. Soper, 18 Vt. 323. But it would seem, from the authorities, if the party in such a case is effectually disseized, they no longer hold the estate together, and he is barred of his remedy for partition; Coke Lit. 167 ; 5 Comyns 166; 1 Swift’s Dig. 103. But the case now before us is one where the parties never held the estate together. There was no privity between them. The defendant held the whole estate from the time of the commencement of the plaintiff’s claim adverse to him.

If the plaintiff’s levy was valid, it could only give him a right of entry, and would not enable him to sustain this proceeding,

Judgment affirmed.