Donaghy v. Gill

Opinion,

Me. Justice Geeen :

We see no reason to doubt that the plaintiff is entitled to all the interest upon the valuation money of the purpart accepted by the defendants, but she is proceeding in this action upon the recognizance given by the defendants in the Orphans’ Court in the partition proceedings. That recognizance obliges the defendants to pay to the plaintiff only one third of the interest of the valuation money, and of course, in an action on the recognizance, no more can be recovered than is thereby stipulated to be paid. It is, however, perfectly clear that the recognizance should be amended or a new one made for the correct amount, and then, if the recognizors refuse to pay, the proper remedy can be speedily enforced. Upon the present state of the record, there can be no recovery for the whole of the interest, and therefore the judgment must be reversed.

The proper course for the plaintiff to pursue would seem to be to go into the Orphans’ Court, and have the correct decree made. We say nothing on the question of jurisdiction., as it is not now before us; but perhaps, when the defendants reflect that if there is no partition the plaintiff is entitled to the exclusive possession of the land during her life as against them and all others, they may conclude that it is doubtful policy to raise that question. The alternative of an action of-ejectment by their mother to recover possession and mesne profits, may be less pleasant than the prompt and full adjustment of her undoubted legal rights bjr their voluntary act.

Judgment reversed, and procedendo awarded.